Nineteen former and current U.S. soldiers and airmen filed suit Friday in San Francisco, claiming top military brass deprived them of constitutional rights by failing to go after their sexual predators."The pattern is the same in all of them: The victim is blamed, ostracized, retaliated against. Rape kits are lost, evidence is lost, there is no court martial," attorney Susan Burke said in an interview.
Burke, an attorney in Washington, D.C., who is trying to reform how the Pentagon deals with sexual assault, has three other lawsuits pending against Pentagon leaders in various courts across the country. Another is on appeal. She was a key figure in a documentary about the topic, "The InvisibleWar.
Burke filed suit in U.S. District Court in San Francisco on Friday, alleging that current Defense Secretary Leon Panetta, his two predecessors and the current secretaries of the Air Force and Army violated the due process rights of five men and 14 women.
In two cases, male soldiers allege that a superior officer invited them to his home, raped them and infected them with HIV. Several of the women plaintiffs tell of being forced to live near, drill with and even undergo group therapy with the men they had accused of rape.
Burke said she filed the lawsuit in San Francisco because one of the soldiers who did not attend the news conference lives there. Burke was joined at a Friday news conference by advocacy groups and Rep. Jackie Speier, D-San Francisco, who is sponsoring legislation to create an impartial office to review rape and sexual assault allegations in the military.
"We must ask the question, 'Why are victims afraid to report?'" Speier said. "And the answer is quite clear: If you report, within a short period of time, you are more than likely labeled as having a personality disorder; you are discharged involuntarily from the military. For those who want a career in the military, that's the last thing you are going to do."
Burke said it would take Congress to reform the most fundamental problem, which is that any perpetrator's chain of command gets to nip any possible punishment or prosecution in the bud. Although Panetta has begun some reforms, such as pushing the decision on whether to prosecute up the chain of command, it's not enough, she said.
"There is no impartiality," she said. "You cannot have a gatekeeper on the administration of justice."
The Department of Defense said in its annual sexual assault report that it received reports of 3,393 victims of sexual assault in fiscal 2011. But a DOD survey the year before indicated there may be as many as 15,000 more assaults each year that are never reported. Factoring in the unreported assaults, only 6 percent of perpetrators ever spend a day in jail, the DOD report for 2011 said.
Besides Panetta, the defendants in the case are former Defense Secretaries Robert Gates and Donald Rumsfeld as well as Air Force Secretary Michael Donley and Army Secretary John McHugh.
Burke praised the men and women who brought the new lawsuit. She was joined at the news conference by plaintiffs Daniele Hoffman, from Indiana, and Kole Welsh, from Washington state.
Hoffman said she was sexually assaulted by man who recruited her into the Army National Guard when she was 17. Harassment led to inappropriate touching. In September 2003, the recruiter tried to rape her.
Though Hoffman, now 27, reported her recruiter, and her testimony resulted in a civilian trial that put him in prison, she says she was victimized by the military, isolated and verbally abused. She says she continued to endure sexual harassment after she was deployed to Iraq.
"The treatment I endured made me hate myself," she said, "so much that I attempted suicide three times."
Hoffman's decision to join Burke's lawsuit resulted from a paper she wrote for her honors rhetoric class entitled, "Silence Me No More."
"My teacher read it and he told me I had something to say," she said. "It changed things ... I'm making it, and I'm graduating nursing school in the honors program. But it's a daily struggle. I don't want anybody to have this experience I'm going through."
After five years in the Army, Welsh earned a scholarship to an ROTC training program at Ft. Lewis, since renamed Joint Base Lewis-McChord. It was there in 2007 that he was sexually assaulted by his staff sergeant supervisor, according to the lawsuit. A couple of weeks later, Welsh learned he had tested positive for HIV. The source of transmission was traced back to his supervisor, the lawsuit states.
"He felt like he had a free pass, and he could do whatever the hell he wanted to," said Welsh, who was discharged shortly after contracting the virus. Welsh said he complained to his superiors about his supervisor but his warnings went unheeded. It wasn't until two years later that the staff sergeant was sent to prison by a civilian court. Welsh blames the federal judiciary for not allowing service members "to sue the military and hold it accountable."
"Other victims I've met are so ashamed and devastated by the fact that they have been given HIV, they remain in the shadows," Welsh said. "The treatment of rape victims in the military is so humiliating, so stigmatizing, many would rather die (than come forward)."