Rare good news for a military whistleblower

After three years of waiting, Lt. Col. Teresa James finally got some good news on April 19. An investigation by the Defense Department’s Inspector General confirmed her claim of professional retaliation after she reported a sexual assault. It is the first time the Inspector General has made such a finding.

{mosads}Both the House and Senate versions of the 2017 National Defense Authorization Act (NDAA) contain key provisions to make sure that this case is not such a rare occurrence.

James’s ordeal began in 2010 while serving in the West Virginia National Guard after she reported that a superior officer had been sexually harassing his subordinates. She later also reported that this same officer had raped her in 2006 after she found out she was not the only person he had sexually assaulted.

The ensuing investigations substantiated her complaints, but then James’s career went from soaring to stalled.

James had received “outstanding” evaluations over her 33 years in the service, the Inspector General’s investigation revealed, but then she suddenly received a negative evaluation for events she was not responsible for that happened outside the time frame of the evaluation period. Her friends became afraid to associate with her. “People see what happened to me and it instills fear,” she told me. “If they can do that to a lieutenant colonel [then what might happen to me?].” The report recommended removing the negative evaluation from James’s personnel file, giving her a military service award she had been denied, and considering her for promotion.

While these recommendations are rare, James’s experience is not. According to Department of Defense surveys, 32 percent of service members who report a sexual assault say they experience professional retaliation afterward. Between 2004 and 2013, an estimated 5,728 service members may have experienced professional retaliation in these circumstances — yet only five cases were investigated by the Inspector General, the sole recourse for those who wish to protect their career.

Survivors choose not to seek relief from the Inspector General for many reasons. Not least among these is the fact that on average investigations take over a year to conclude and are unlikely to bring meaningful results.

The burden of proof in the military remains on the victim to demonstrate that the unfavorable personnel action would not have occurred if they had not reported the sexual assault. This high burden of proof is out of step with civilian cases inside the United States and with both military and civilian systems in other countries. Fewer than 1 percent of any reprisal cases investigated have received any form of relief.

The best practice standard would require the victim only to establish that reporting the sexual assault was “a contributing factor,” and then require the organization to demonstrate that it would have taken the same action without that factor for independent, legitimate reasons. After the U.S. government adopted this standard in 1989 for civilian employees, the success rate for claims jumped from 1 percent to 5 percent annually to 25 to 33 percent.

Just as important, the Inspector General has no authority to hold wrongdoers accountable. In James’s case, the Inspector General recommended action against her supervisor by the secretary of the Army, who has broad discretion in the matter. Unfortunately, the military has rarely taken action against those responsible for retaliation, and when it has, the action has typically been no more than an administrative reprimand, the least severe disciplinary action.

The House version of the 2017 NDAA contains important language that would bring the burden of proof for service members in line with standards for civilians. The Senate version of the NDAA contains additional provisions strengthening protections for whistleblowers by broadening categories of prohibited reprisal to include retaliatory investigations and helping to protect service members from additional retaliation while their case is being investigated.

Congress has recently made addressing retaliation a priority, recognizing that it has no place in the armed forces and ultimately undermines efforts to address sexual assault. To ensure that victims really have the tools they need to protect their careers, Congress needs to maintain the House and Senate provisions in the final NDAA.

Darehshori is senior counsel in the U.S. program at Human Rights Watch and author of a new report “Booted: Lack of Recourse for Wrongfully Discharged U.S. Military Rape Survivors” on the lifelong impact on people who had unfavorable discharges from the military after reporting a sexual assault.

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