There is a remarkable unwillingness in our military to take sexual assault seriously. Incidents are ignored or covered up, and military brass are allowed to do as they please.
Victims rarely see justice because the military justice system, where their cases are considered, is a closed, separate, and unequal system that leaves assailants almost untouchable and allows for retaliation against those who make claims about the higher-ups.
That could change, however, because of a recent ruling in a civil case that was argued in the Central District of California in the sexual assault claim I brought, Spletstoser v. the United States and General John E. Hyten. The government argued I should be denied access to a civilian court, but the judge denied their motion to dismiss.
Gen. Hyten and his Department of Justice lawyers have already filed an appeal to the Ninth Circuit Court of Appeals claiming immunity from the civil court actions. But the judge’s ruling is an important step for those who have been denied justice in the antiquated and biased military justice system. If the civil action proceeds, the reach of that decision will extend far beyond my complaint: it will grant service members the right—enjoyed by all other American citizens—to seek justice in civil court.
My case goes back to my time as an Army colonel, when I was assigned to the U.S. Strategic Command that manages the nation’s nuclear arsenal. I traveled with Gen. Hyten around the world as his principal senior assistant. Gen. Hyten sexually assaulted me multiple times.
I did not report the incidents at that time, fearing retaliation, and I was mindful of national security implications. I also told myself that there was no point in destroying his career or his marriage, especially since it was widely known that he was planning to retire.
However, after I was assigned to a new duty station, Gen. Hyten was nominated to serve as vice chairman of the Joint Chiefs of Staff, the military’s second-highest-ranking position. I felt then that I had a duty to report his conduct through the proper channels so he would not have the chance to do this to someone else.
An internal military investigation did not exonerate Gen. Hyten, and sufficient evidence existed to prosecute him, but an Air Force peer simply decided not to prosecute. His subsequent confirmation as vice chairman of the Joint Chiefs sent a chilling message to victims, good order, discipline, and accountability.
Despite many alleged incidents of serious misconduct, the Air Force has never court-martialed a single general officer. It is stunning that finally, just more than weeks ago, it charged a two-star general for one count of sexual assault against a civilian. He will face an Article 32 preliminary hearing, similar to a civilian grand jury. He was appropriately relieved of duty.
In fiscal year 2018, an estimated 25,000 service members were sexually assaulted, according to Defense Department statistics. But that led to only 6.4 percent of the cases being tried, and only 2.4 percent of offenders convicted of a nonconsensual sex offense.
I filed a civil action in California, where the final sexual assault took place, to seek accountability and transparency. Gen. Hyten’s lawyers, provided at taxpayer expense, claim he is immune from civil prosecution under what is known as the Feres Doctrine. As the law has traditionally applied to sexual assault victims, Feres immunity is wielded as both a sword and shield; attacking the rights of service members to access the courts, while protecting perpetrators from liability.
I am not alone in arguing this. Even the late Supreme Court Justice Antonin Scalia wrote that Feres was wrongly decided. Congress has been slow to act on this and amend the law. Now is the time to do so.
Congress should finally pass the Senate’s bipartisan Military Justice Improvement Act, which removes from military commanders their sole decision-making authority over serious crimes, including sexual assault, and requires review by independent, trained military prosecutors.
Congress should also pass the I Am Vanessa Guillen Act, now in the House, which moves prosecutorial authority outside of the chain of command for sexual assault and sexual harassment cases, requires the Government Accountability Office (GAO) to report on how the military handles missing service members, and makes sexual harassment a crime within the Uniform Code of Military Justice.
Collectively these efforts create a holistic solution that enables accountability, increases readiness, enhances good order and discipline, and advances justice.
Many victims of sex-related crime in the military will not have the opportunity to reach their service potential because they suffer trauma and PTSD, and are often retaliated against and even kicked out of the service. In fact, a third of victims who report sexual assault are discharged within a year.
Access to courts is a fundamental American right and all citizens should have the opportunity for equal justice. We dishonor our service men and women, the ones who are willing to fight and give their lives for our freedom and defend the Constitution, by denying them the full protection of equal justice under law.
Kathy Spletstoser is a retired Army Colonel and former White House Fellow who served in command and staff assignments around the world including four combat tours to Afghanistan and Iraq. She holds three master’s degrees and is currently pursuing a doctorate at Johns Hopkins University School of Advanced International Studies.
