Reforms sought for the military’s ‘broken’ justice system

Victims: Complaints bring retaliation or no action against the perpetrator.Air Force: Commanders must retain authority to discipline service members.

There have been many days after her brutal sexual assault when former Coast Guard seaman Kori Cioca wishes she could die — when the only thing that keeps her tethered to this world are her 5-year-old daughter and 1-year-old son.”I’m disgusted by my own body,” she confessed, “and I want out of this body so bad sometimes.”

The 4-foot-11-inch, 100-pound Warren County woman wishes she could obliterate the memory of her 6-foot-3-inch, 275-pound attacker slugging her in the jaw and, days later, dragging her by the hair into his berth and raping her.

She wishes she could erase the response of her command when she reported the attacks against a Coast Guard petty officer: “We can’t risk losing him. He’s too critical to the mission.”

But she never wishes that she had not reported the attack. “I was raised to speak up and stand for what is right, even if it will harm me,” she said. “Reporting or not he will still hurt others and the command will continue to ignore. Now with all the attention on military sexual assault, it will help others.”

As one of the central figures in the 2012 Oscar-nominated documentary “The Invisible War,” the diminutive Cioca has gained an oversized profile in the raging national debate over sexual assault in the military and what can be done to combat it.

“The entire military justice system is broken and it needs to be fixed from start to finish,” said Taryn Meeks, executive director of Protect Our Defenders, an advocacy group for military sexual assault victims. Meeks, a former Navy Judge Advocate General lawyer, believes the military has failed to protect victims and hold perpetrators accountable.

Changing a culture

There could hardly be a more shocking example than another Dayton-area case, the murder of pregnant Marine Lance Cpl. Maria Lauterbach of Vandalia in December 2007, which sparked international attention and military soul-searching. Although she had accused fellow Marine Cpl. Cesar Laurean of rape, he wasn’t questioned by authorities until several weeks after her disappearance.

Lauterbach’s charred remains were found in a shallow fire pit in Laurean’s backyard in Jacksonville, N.C., on Jan. 11, 2008. In August 2010, Laurean was convicted of first-degree murder and is serving a life sentence without parole.

But nearly six years since Lauterbach’s murder, the problem only seems to have intensified. A Department of Defense report released this spring showed a 36 percent increase in the number of estimated unwanted sexual contact and sexual assault incidents, from 19,300 assaults in 2011 to 26,000 in 2012. Meanwhile, during the same time period, rates of reporting dropped from 13.5% in 2011 to 9.8% in 2012. In 2011, victims reported 3,192 out of 19,000 incidents, compared to 2012, where victims reported just 3,374 out of 26,000 incidents. The Pentagon estimates 53 percent of the sexual assault victims are men, with the attacks primarily conducted by other men.

The Lauterbach family’s attorney, Merle Wilberding, a former JAG lawyer, said it’s very difficult to change military culture: “This is in part because the macho image has always been a hallmark of the military. But it is also because military commanders focus on preparing for war. One of the consequences of that focus is that all too often commanders see claims of sexual assaults, especially the ‘he said, she said’ complaints, as a distraction from their mission of preparing for war. Sadly, that often results in an attitude by a commander who might say, ‘Well, that was last night. Forget it. We have a war to fight today.’”

The Cioca and Lauterbach cases illustrate the potential perils of speaking out. “Look at Maria’s case and Kori’s case, and the common denominator is that when they went to complain, there was no one to insist that something be done or that a thorough investigation be conducted,” said Chris Conard, another attorney for the Lauterbach family. “Who was in charge of making those decisions? The command structure, in spite of the fact that there’s a negative impact on commanders when bad things happen on their watch.”

Meeks said the military justice system needs fundamental reform, and congressional bills to deal more effectively with sexual assault within the ranks do not go far enough. Among several areas in need of reform, she said, are taking the decision to prosecute a case outside the chain of command and putting it in the hands of independent and trained JAG lawyers, and the elimination of the “good soldier” as a character defense for a convicted perpetrator.

Military juries, frequently composed of senior leaders in uniform, have often handed out “offensively light” sentences to convicted offenders, she said. In some cases, the sentences may be 60 to 90 days in confinement and the perpetrator returns to the same unit he left and where the offense occurred, she said.

“What message that sends is you may be a rapist, but you’re still good enough for our military,” she said. Victims have been blamed for putting themselves in a position to let assault happen, she said.

The military should follow the model of civilian federal courts of a judge handling sentencing and prosecutors making the determination to prosecute without the influence or veto power of unit commanders, she said.

Congressional action

A debate in Congress has swirled around whether military commanders should have the authority to determine whether to prosecute a case, such as sexual assault. U.S. Sen. Kirsten Gillibrand, D-N.Y., had fought to have that decision put in the hands of military lawyers outside of the chain of command, but U.S. Sen. Carl Levin, D-Mich., had removed the amendment. Levin is the chairman of the Senate Armed Services Committee.

Glen Caplin, a Gillibrand spokesman, said the senator will offer the amendment again when the defense bill reaches the Senate floor. “The concern is what we have heard directly from the victims over and over again is that the reason why people don’t report or they wouldn’t report again if given the choice is because of their experience of what happens within the chain of command,” Caplin said. “The issue is the commanders are making the decision and that has a chilling effect on those willing to come forward.”

Victims fear retaliation or no action will be taken against a perpetrator if they do complain, Caplin said. He noted the Pentagon’s Sexual Assault Prevention and Response report this year that showed 62 percent of active-duty women respondents subjected to unwanted sexual contact had perceived some form of social, administrative or professional retaliation. Another 66 percent of those victims reported they felt uncomfortable making a report, and half believed nothing would be done. “This is not a new problem, but the military for two decades has failed to solve it,” Caplin said.

In an op-ed in USA Today last month, Levin wrote,”Removing commanders’ authority to prosecute actually threatens to make prosecutions less likely. The evidence shows that commanders are more likely to order courts martial in difficult cases than military lawyers who might hesitate to bring cases in which conviction is uncertain.”

Defense Secretary Chuck Hagel has asked Congress to change the Uniform Code of Military Justice law to strip away commander’s authority to overturn a guilty verdict in a major offense, and there appears to be no opposition to the move among most lawmakers. Hagel asked for the change this year after a three-star Air Force general overturned the conviction of a lieutenant colonel found guilty of sexual assault in a court martial trial at Aviano Air Base in Italy.

That’s one of several high-profile incidents in recent months that has brought intense public and congressional scrutiny to the Air Force’s handling of sexual assault cases. At Lackland Air Force Base - Joint Base San Antonio in Texas, two dozen military training instructors have been convicted of sexual assault or having inappropriate relationships with dozens of recruits training at an enlisted boot camp.

Air Force Lt. Col. Jeffrey Krusinski, 41, a Fairfield, Ohio native, had been in charge of the service’s Sexual Assault Prevention and Response Office for only a few weeks when he was arrested and charged with sexual battery for allegedly groping a woman in a parking lot in northern Virginia in May. He faces trial this month on the criminal misdemeanor charge.

Krusinski’s lawyer, Barry Coburn, said he has advised his client not to speak to the press. “This case is not about the problem of sexual assault in the military, but the very particular facts in this case,” Coburn said. “We have the highest respect for our client and look forward to defending him in court.”

The Air Force has addressed the problem by becoming the first military branch to appoint lawyers to represent victims in military sexual assault cases. Last week, Wright-Patterson Air Force Base had a “stand down day” where every unit had training and group discussions on how to prevent sexual assault, according to Simone Koram, the base’s full-time sexual assault response coordinator. The position has been in existence since 2005.

Maj. Gen. Margaret Woodward was appointed to replace Krusinski as head of the service’s Sexual Assault Prevention and Response Office, a major step up in the rank of the leader heading the program.

Air Force spokeswoman Lt. Col. Laurel Tingley said the chain of command authority should be preserved: “In the military, it is the commander’s responsibility to maintain a disciplined fighting force. The commander must therefore retain the authority to discipline service members who violate our rules and laws, undermining good order and discipline within the force.”

Bravest person I know’

Cioca recently made a surprise appearance at the mandatory annual sexual assault prevention training for the Ohio Army National Guard’s Cincinnati-based 1-174th Air Defense Artillery Battalion. The 200 Guardsmen had just watched “The Invisible War,” when Cioca gave an emotional account of her assault.

Capt. Jennifer Stephens said that the sexual assault prevention training is typically a dull, check-off-the-box affair, “but Kori’s a powerful little firecracker. I have had more conversations with soldiers about sexual assault since screening in May than in my 10 previous years with the National Guard.”

While Cioca is increasingly being sought out for training by other branches of the military, a Coast Guard spokesman said that “The Invisible War” gives a false impression of the Coast Guard’s response to sexual assault. The film’s producers extensively interviewed the Coast Guard’s sexual assault prevention response program manager, but never used any of the footage, according to Cmdr. Christopher O’Neil. “The movie addresses an important issue,” O’Neil said, “and I’m not passing judgement on Miss Cioca, but you will walk away with the wrong impression of the way the Coast Guard handles sexual assault cases.”

O’Neil added that Cioca never reported being raped in her initial allegations about the November 2005, incident at Saginaw River, Mich. O’Neil said that on March 9, 2006, Cioca told the Coast Guard Investigative Service that the petty officer pressed her hand to his groin and slapped her across the face. In a pretrial investigation hearing, Cioca testified that the petty officer, on a separate occasion, “bumped” her buttocks from behind with his groin. On September 1, 2006, the petty officer was convicted of indecent acts by summary court-martial and sentenced to a reduction in rank and 30 days’ restriction.

Cioca countered, “My senior chief said I wouldn’t put rape in my complaint because my perpetrator said the rape was consensual. That’s why he was given an ‘inappropriate relationship’ charge. I told my senior chief I was raped, he rolled his eyes at me, and told me to get on watch.”

She added, “I don’t expect the Coast Guard to support me now, because when I wore their uniform they refused to then.”

Cioca met her husband, Robert McDonald, when she was transferred to a station in St. Joseph, Mich. When they started dating, he recalled, “I got negative remarks — don’t marry her, she’s a problem.”

To this day, McDonald said, his wife loves the Coast Guard more than he does: “The Coast Guard has a mission of saving lives and we both support that to the fullest. There are good and honest people in every branch, but they keep the repeat offenders in, and that’s why this keeps happening. How many times can they say ‘zero tolerance?’ It doesn’t mean anything.”

McDonald is a full-time caregiver for his wife and their children, Shea, 5, and Kade, 1. Cioca has been deemed 100-percent unemployable by the Veterans Affairs Administration, because of her post-traumatic stress disorder and the injuries she suffered from a dislocated jaw. For 10 years after her assault, she said, she was only able to eat soft foods such as mashed potatoes.

Cioca said she was so traumatized by her attack, and so tired of the constant pain, that early in her marriage she had decided to kill herself by overdosing on tranquillizers. Then she found out she was pregnant with her daughter. “It would have been too selfish to take her life — I would not only be killing myself but killing someone else,” she said. “God saw that I was dead, a zombie, and he gave me my heart back, gave me my life back. My heart started beating again.”

Life has gotten better since the premiere of “The Invisible War,” with many viewers — both private donors and charities — donating money to pay for her jaw surgery. Most importantly, she said, she no longer feels alone in her struggle.

“She’s the strongest and bravest person I know, to come out and tell her story,” McDonald said.

A parent’s warning

Both Cioca and the Lauterbach family have praised the efforts of U.S. Rep. Mike Turner, R-Dayton, co-chairman of the House Military Sexual Assault Prevention Caucus, who has supported a range of amendments to the National Defense Authorization Act to address sexual assault. Turner has introduced legislation that would mandate offenders receive a minimum two-year sentence upon conviction and dismissal or a dishonorable discharge.

Today, no minimum sentence is mandated, Turner said: “The problem with sexual assault in the military is the victim is revictimized and the perpetrator has not felt fear from the military system of justice.”

Part of the culture of the military has been to ignore this issue, Turner acknowledged, but he said the Pentagon has shown growing attention to this issue since 2008. Among a flurry of congressional legislation, a bill is aimed at giving victims of sexual assault “whistleblower protections” from potential retaliation for reporting the crime.

Turner also has sponsored legislation that would require each branch of the military to provide victims with legal counsel and would remove a military leader, or convening authority’s right to overturn the guilty verdict of a convicted offender.

Other provisions would require an expedited decision on a transfer request of an assault victim, eliminating a five-year statute of limitations for a court-martial trial for sex-related crimes, and temporary reassignment or removal of service members accused of sexual assault.

“They’re all pieces of the puzzle to complete the transformation for how this issue is handled in the military,” Turner said.

Mary Lauterbach, Maria’s mother, cautioned other parents “to be aware of the widespread nature of this problem as they consider the Armed Forces as a career choice for their children.”

She believes, however, that the attention to this issue is no longer just a passing fad.

“At this time military leadership is truly afraid that they will be stripped of control, and this alone will prompt meaningful action,” Lauterbach said. “Cases are being looked at much more seriously, and fewer cases are being casually dismissed. Leadership for the first time is being held accountable when they decide not to pursue justice.”

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