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Human remains identified as missing Fort Hood soldier
00:37 - Source: CNN

Editor’s Note: Ashley Merryman is co-author of “NurtureShock: New Thinking about Children,” and “Top Dog: The Science of Winning and Losing.” She served in the Pentagon from 2018-2020, first as the Special Advisor on Diversity and Inclusion for the Chief of Naval Operations and then as an advisor to the Department of the Navy’s Sexual Assault Prevention and Response Office. The opinions expressed in this commentary are her own. View more opinion on CNN.

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For years, there had been little progress made when it came to the ongoing tragedy of military sexual assault. However, that all changed last year, following the brutal killing of Army Specialist Vanessa Guillen at Fort Hood by a fellow soldier. Since Guillen’s death, proposed reforms for how the US military prosecutes sex-related crimes have garnered widespread support. Even Pentagon leaders now advocate some change. While individual proposals can be debated, it’s laudable that everyone is serious about improving prosecution of military sexual assault. Unfortunately, though, there is little evidence that the same seriousness is applied when it comes to sexual assault prevention.

Ashley Merryman headshot

If there’s doubt that prevention efforts have been little more than a joke, consider how, this April, the services recognized “Sexual Assault Awareness and Prevention Month,” an annual observance since 2009. Festivities included a Space Force wing’s barbecue; an Army garrison served up teal-colored pancakes with a side of inspiration (“Be a hero, Eat a pancake”). An Army brigade had a sexual-assault themed escape room (At least they didn’t seem to chain up participants, as Fort Bragg’s once did), while the Navy encouraged its commanders to sponsor scavenger hunts, chalk art and trivia nights.

These exercises sound trivial, and yet there’s little proof that most large-scale prevention initiatives from the Department of Defense are much more effective. For years, experts have complained that too few DOD efforts are evidence-based, and most programs are never assessed for efficacy or even accuracy. For example, the office charged with leading Navy and Marine Corps sexual assault prevention efforts has obsolete regulations on its website.

Two steps could move the military a long way in the right direction

First, the Pentagon needs to change the regulation that dictates how military leaders should respond to complaints of sexual harassment. This change could, on its own, reduce the incidence of sexual assault.

Consider that, according to a 2020 analysis by the DOD of active duty service members surveyed, women who were sexually harassed in 2018 were 12 times more likely to be sexually assaulted that year. Men who were sexually harassed were 42 times more likely to be sexually assaulted that year.

Perpetrators of sexual assault use sexual harassment as a tool to identify victims, looking for the vulnerable and socially isolated. They also use harassment to test witnesses — to see who will report them and who will just look the other way.

The military flunks that test. Currently, the defense department and the services have zero tolerance policies relating to sexual harassment, and sexual harassment is a crime under the Uniform Code of Military Justice. But that’s empty propaganda. That is because the military also has regulations that informal complaints of harassment should be resolved at “the lowest appropriate level.

This is where prevention must begin: Striking this practice from the books. As long as this policy remains, every other reform — including changes to the military justice system — will be meaningless. “Lowest appropriate level” is jargon for a military custom that, when people have a minor personal dispute, they should work it out on their own, ideally without the involvement of supervisors.

Although this may be effective in some contexts, when it comes to sexual harassment, the Department of the Navy policy, as recently as 2020, spells out in its directive what the “lowest appropriate level” means:

“Individuals who believe they have been sexually harassed will be encouraged to address their concerns or objections regarding the incident directly with the person demonstrating the harassing behavior via the informal resolution procedures; however, informal resolution is not required.”

Further, “The purpose and intent of an informal resolution procedure is to put in place an effective system to resolve complaints of sexual harassment at the lowest appropriate level…. [The] system will:

a. Emphasize the individual accountability of the recipient, accused, co-workers and chain of command.

b. Clarify the roles for co-workers and the chain of command.

c. Teach interpersonal communication skills….”

It bears repeating. Military law says crime victims should confront the alleged perpetrators about the crime. When doing so, victims should admit any “accountability” they may have for being victimized — perhaps because of their presumptively deficient communication ability. (Similarly, Black or Jewish service members may be told to work out issues with a racist coworker, since the “lowest level” policy also applies to racial, religious, ethnic, sexual orientation and gender discrimination.)

Demonstrating the force of the lowest appropriate level policy, 24% of women and 6% of men in the military endured severe, persistent sexual harassment, according to a DOD report from FY2018. Of those who tried to complain, the majority were told to drop the matter, the report said.

Sexual harassment leads to sexual assault

Investigation into Army Specialist Guillen’s Fort Hood killing revealed that, prior to her death, she had been sexually harassed by a supervisor, but no action was taken. While not referring to that incident, one soldier who was interviewed during the investigation described how Fort Hood’s leaders responded to complaints of sexual harassment by supervisors: “…leadership like[s] to keep it to the lowest level and try their hardest to convince victims and witnesses not to make an official complaint.”

While we can never say for certain if the “lowest appropriate level” policy contributed to Guillen’s death, we can say that, as long as it remains in place, others are at greater risk.

The military should replace the “lowest appropriate level” requirement for sexual harassment with a requirement that leaders take all such reports seriously and respond appropriately.

That brings us to the second step on the path to prevention: Military leaders are responsible for establishing a safe command climate and must be held accountable if they fail to do so.

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For two decades, researchers such as University of Iowa’s Anne G. Sadler have known that leaders make the difference: When commanders don’t take reports of sexual assault seriously or fail to express zero tolerance for sexual harassment, the odds are five times higher that someone at that command will be assaulted. By contrast, when leaders take strong stands against these behaviors, fewer incidents occur. And of those that do happen, more are reported because subordinates trust their leaders will respond.

The military unit commander is responsible for everything that occurs in their command, often because they create the conditions that determine the outcomes and performance of the command. This should include sexual harassment and assault, but that’s not how it goes in the vast majority of cases.

In the past, this might have been excused on the grounds that leaders can quantify the dangers of tactical incompetence; they know what can happen when a watch team is poorly trained or a gun is poorly maintained. But there’s been no equivalent tool to predict when someone’s at risk of sexual assault.

Until now.

In 2020, Department of Defense researchers identified about 30 specific behaviors and attitudes in five categories — sexual harassment, gender discrimination, lack of responsibility and intervention, lack of respect and cohesion and workplace hostility – that, when analyzed collectively, predict when a service member is at increased risk of sexual assault. This initiative is now known in the Pentagon as The Watch List.

Importantly, most of the specific behaviors are already prohibited under existing regulations. But the Watch List, for the first time, quantifies the harm of failing to live up to those standards. For example, respect for and from the chain of command, unit cohesion — they’ve been a part of military culture for centuries. Now, a leader can know that, when a command lacks them, women face more than double the risk of sexual assault while men have 5.8 times the risk.

Would Fort Hood leaders have maintained their laissez-faire approach to Guillen’s concerns if they knew an Army female who is sexually harassed is 16 times more likely to be sexually assaulted? Or that a male being harassed was 60 times more likely to be assaulted? In other words, they are being targeted for assault.

It is unimaginable that a leader could know that and fail to act. And it is incomprehensible that, if they did not, they would remain in any leadership capacity.

Some believe military justice reform will eventually deter future crime. Others claim the answer to military sexual assault is a new Pentagon bureaucracy that would change every aspect of military life and culture. But these aren’t serious proposals: The best case scenario is that, at untold cost, they’d take years to have a real impact, and there’s no hard evidence either will ever reduce the incidence of sexual assault.

It’s time to get serious about prevention. And the fastest, easiest and possibly most effective methods would be to eliminate the policy of handling sexual crimes at “the lowest appropriate level” and to educate commanders, holding them accountable if they establish a climate with a higher risk of likelihood for sexual assault. In short, to require the military live up to the culture and code it already has.