Lawrence E. Rafferty writes about the appalling line of questioning that a woman received at a military judicial proceeding over allegations of rape. He quotes from a report in the New York Times:
For roughly 30 hours over several days, defense lawyers for three former United States Naval Academy football players grilled a female midshipman about her sexual habits. In a public hearing, they asked the woman, who has accused the three athletes of raping her, whether she wore a bra, how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse “for being a ho.”
He says that the problem is that these kinds of hearings, known as Article 32 proceedings that determine if the matter should proceed to court martial, allow lines of questioning that would be forbidden in a normal court of law. And the problems do not end there.
In the case of the Naval Academy student noted above, the military judge who is handling the charges will not make the decision whether a court-martial should be held. The judge forwards the case to the superintendent of the Naval Academy and Vice Admiral Michael H. Miller will make what many would consider a judicial decision and decide if the case should be tried.
Does it make sense that a third-party, who in many cases is the commanding officer of the parties involved and who is not involved in the Article 32 proceedings, can decide if defendants are brought to trial? Would it be a concern to female victims that the vast majority of the commanding or supervising officers who are making these decision, are men?
A Washington Post editorial described that what happened appalled many observers:
During more than 25 hours on the stand, The Post’s Melinda Henneberger and Annys Shin reported, the woman was grilled about whether she was wearing underwear on the night of the alleged assaults, how she danced, her technique for oral sex and other matters not relevant to the claim of rape.
Defendants have the constitutional right to confront their accusers; their attorneys are obligated to challenge and present the most vigorous defense. But the extent and nature of the questioning went “beyond the pale,” as Eugene R. Fidell, scholar of military justice at Yale Law School, put it on WAMU-FM. It was an assessment shared by several other experts in military law we consulted.
The current Manual for Courts-Martial has a rule of evidence aimed at protecting rape victims from degrading questions. But according to a Defense Department official, the rules don’t indicate what procedures should be used to apply them at Article 32 hearings, and practice varies widely. The fact that such abusive questioning would be permitted in a case as high-profile as one involving Naval Academy athletes makes one wonder — and shudder — at what happens in the conference rooms where no reporters are seated and no attention paid.
Is it any wonder that women in the military suffer from so many instances of ‘unwanted sexual contact’ (26,000 last year, up from 19,000 just two years earlier) and that they might well be reluctant to report rape and other forms of sexual abuse if this is the kind of treatment that they will have to endure?
Unfortunately the military is not an outlier in the way it treats women degradingly if they should have the temerity to complain about sexual assault. It is embedded in a wider culture that shares some of those same deplorable characteristics. There is something about hierarchical, authoritarian, male-dominated structures (military, football teams, Catholic church, ultra-Orthodox Jewish sects, Islamic extremist groups) that seem to encourage people in them to think that they have greater license to behave in these kinds of ways.