Rape and the Culture of Impunity: Despite Proclamations, White House Remains Silent About Rape in the Military

Antoinette Bonsignore

A new Presidential Proclamation makes no mention of the epidemic of rape in the military. 

Last week the U.S. Office of Civil Rights (OCR) announced that it was investigating a Title IX complaint filed by 16 former and current Yale students: 12 female and 4 male students.  The 30 page complaint filed by the students on March 15th alleges a culture at Yale that tolerates rape, sexual assault, and sexual harassment that has degraded the University into a “hostile environment…  [that]… precludes women from having the same equal opportunity to the Yale education as their male counterparts.”

Title IX of the Education Act of 1972 provides:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The official response from Yale’s Dean

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“Yale does not and will not tolerate sexual harassment, and seeks to build an environment that is supportive of women and of men, and of people of all gender and sexual identities.  Yale is notable, in fact, for the extraordinary number and range of initiatives, programs of study, working groups, faculty and student organizations, and administrative offices devoted to the advancement of women and women’s issues.”  The Dean also emphasized that “Yale will respond fully to the investigation and cooperate with the Office of Civil Rights.”

Many of the descriptions in the complaint deal with very public manifestations of extreme sexual intimidation and threats of violence directed towards Yale women.  The distribution of a “Preseason Scouting Report” email that ranked 53 freshman women by name, hometown, and dorm residence according to “how many beers it would take to have sex with them;” a fraternity pledge event that gathered dozens of male students in the vicinity of freshman dorms shouting “F—king sluts!” and “No means yes!  Yes means anal!” 

The timing of the investigation and complaint happens to coincide with the announcement of a Presidential Proclamation declaring April to be the National Sexual Assault Awareness and Prevention Month

The Proclamation reads, in part:

Our Nation must continue to confront rape and other forms of sexual violence as a deplorable crime.  Too many victims suffer unaided, and too many offenders elude justice.  As we mark National Sexual Assault Awareness and Prevention Month, we recommit to building a society where no woman, man, or child endures the fear of assault or the pain of an attack on their physical well being and basic human dignity….Sexual assault is considered to be the most underreported violent crime in America, and criminal justice responses vary widely across our country.  Some communities have developed highly trained, coordinated teams who understand the nature of sexual assault and can respond with compassionate understanding.  In other places, victims hesitate to report these crimes because they fear the criminal justice system will respond with skepticism or fail to bring the perpetrator to justice.  We must ensure our police, prosecutors, and courts treat victims with the seriousness and respect they need and deserve.  We must do more to provide services that help victims recover from the trauma of sexual assault.  And ultimately, we must prevent sexual assault before it happens.

Under Vice President Joe Biden’s leadership, my Administration is committed to engaging a broad spectrum of Federal agencies and community partners to prevent sexual assault, support victims, and hold offenders accountable.  The Department of Justice’s Office on Violence Against Women is leading the Sexual Assault Demonstration Initiative to improve the way sexual assault survivors are served.  The Centers for Disease Control and Prevention is funding innovative prevention campaigns that engage bystanders in reducing sexual assault, and the Department of Education is working to combat sexual violence at schools and universities.  We will continue to support new approaches that show promise in changing cultural attitudes toward sexual violence and preventing these crimes.

This Proclamation also comes nearly two months after the filing of a class action lawsuit filed against former Defense Secretary Donald Rumsfeld and current Defense Secretary Robert Gates alleging a rape and sexual assault epidemic in the military.  The plaintiffs in that action have charged the Department of Defense (DOD) with the wholesale and systematic refusal to protect servicemembers from being oftentimes repeatedly raped and sexually assaulted while serving in the military; and with a failure to investigate and subsequently prosecute and punish perpetrators.

Unfortunately, this Presidential Proclamation makes no mention of this epidemic that has plagued the military for so many years.  And even though Vice President Biden will be traveling to the University of New Hampshire this week to “…give schools, colleges and universities new guidance on preventing and responding to sexual assault, ”  there has been a disturbing level of silence from the White House on the sexual violence plaguing the military. 

Will there be any attempt by the media or the White House press Corp in particular to question the White House Press Secretary about not only this glaring omission from the President’s proclamation but to ask direct questions regarding the silence from the White House? 

Why would the White House ignore this calamitous situation within the military while pushing forward an agenda to engage a “broad spectrum of Federal agencies” noting the Department of Justice, the Department of Health and Human Services, and the Department of Education but making no mention of the Department of Defense? 

The culture of impunity that has been facilitated and fostered within the military has created an environment where allegations from both female and male rape victims are:

Ignored and if not ignored so callously prosecuted within the Military Code of Justice as to suggest that rape is nothing more than a minor infraction deserving of little punishment, if any.

A system set up to hide evidence, encourage victims to recant, and when the victim tries to receive some semblance of justice they are generally rewarded with demotions, harassment, and shockingly further rapes and sexual assaults as punishment.  Victims are warned to stay quiet or face dire consequences.

This culture of impunity within the military and at college campuses has manifested itself in some very specific ways: namely, the public proclamation of predation – either through men gathering in front of women’s dorms at Yale or in front of the Yale Women’s Center engaging in direct physical intimidation of women.  The complaint identifies the following very public manifestations of Yale’s culture of impunity:

In 2005, fraternity members stole t-shirts emblazoned with the testimonies of sexual assault survivors from the Clothesline Project, a nationwide program that addresses violence against women.  In 2008, Zeta Psi pledges were photographed holding a sign emblazoned with “We Love Yale Sluts” outside of the Women’s Center…In 2009, a crude email entitled the “Preseason Scouting Report,” which ranked incoming female freshmen based on their sexual desirability, was circulated amongst fraternities and male athletic teams.

And just as the plaintiffs in the military class action lawsuit are seeking fundamental reform measures within the military, the Yale complainants are also fundamentally seeking to “…overhaul how the University administration approaches cases of sexual harassment and assault.”  A female student that graduated last year stated, “[i]n the past, Yale has dealt with these things in an opaque, conciliatory manner that—if not intentionally, at least in practice—provides inadequate resolution for victims and sometimes even harms them further.”  Another female Yale student, who is a junior, said, “We’re going after change…We want change.”

At Yale, students describe a sexual harassment and sexual violence reporting system that engenders the  “…’idea that it should stay all within the family, that Mom and Dad will take care of it and quietly reconcile it…They treat cases like they’re these tiny skirmishes between brothers and sisters at Yale’.”  And when sexual assault allegations are dealt with “in house… a lot of people who report first through the University end up sucked into Yale’s internal labyrinth of reporting mechanisms’…” 

The endemic problems at Yale are eerily similar to the reporting problems and prosecutorial deficiencies identified within the military’s class action law suit.  There is an “unwillingness to sufficiently prosecute perpetrators of sexual violence as one of their primary grievances.”  And as one student noted, “[p]lagiarism is something people are expelled or suspended for, but there seems to be a near-infinite tolerance for rape.”

Another student stated that “Yale deliberately shields those who commit sexual harassment and rape from both the public eye and from the consequences of their actions…You cannot imagine what it is like to sit in class with the person who raped your best friend.”  Another junior commented,

“[i]n my immediate circle of friends, I know six or seven women who’ve been raped…I think it’s hard to go through Yale and not have a roommate, a friend, a girlfriend, experience some sort of serious harassment.”

Yale created a Grievance Board for Sexual Assault in 1977 after 5 female students sued Yale under Title IX alleging that “…repeated ‘quid pro quo’ sexual harassment by male professors was denying women the right to an equal education.”  The inherent problem with the self-policing aspect of the Grievance Board, and the military’s self-policing investigatory apparatus is that “…the board, staffed by a combination of students and faculty, is not authorized to deal with formal student-to-student harassment complaints.”  The other and presumably more transparent avenue for student complaints involves filing a grievance with the “…Yale Executive Committee—or ExComm, as students call it—a notoriously inept disciplinary body that was originally created to deal with things like plagiarism and cheating.”  Compounding that ineptness is the fact that even though “…ExComm can discipline students—from ordered counseling to a suspension or expulsion…the action is kept strictly confidential, which means it has the capacity to be easily swept under the rug.” 

According to Yale research fellow Claire Gordon:

Sexual harassment is the product of a deeper culture of misogyny that is visible in other, more subtle, ways at Yale.  When large groups of Yale men act this out publicly, Yale can act dismayed, and nominally condemn it, but without actually punishing the harassers, without calling it sexual harassment, without addressing the culture that has made so many men “lapse in judgment” so many times over so many years, the school has allowed this culture to persist.

Yale has created a “…culture of denying rape” and a “…culture of rape acceptance” where groups of men act as predators and women are the prey

Another manifestation of this predation has been the videotaping and viral distribution of the sexual violence perpetrated against victims.  In the class action suit filed against the DOD a victim was gang raped, the attack was videotaped, and then the perpetrators circulated the video among fellow soldiers.  And then there’s the horrific account of an 11 year old child that was repeatedly gang raped by at least 19 men ranging in age from 14 years to 27 years old that was similarly recorded on cell phones and distributed among students in Cleveland, Texas.  The young girl was raped on at least six different occasions over a three month period.  Despite this video evidence of the rape, members of the community have blamed the 11 year old girl for wearing provocative clothing and luring the men to attack her; and even blamed her parents for not supervising her properly.  One woman actually told the NY Times, “[i]t’s just destroyed our community…These boys have to live with this the rest of their lives.”  The family and the child have even received death threats forcing Child Protective Services to remove the child from the family home and place her in foster care. 

In all of these cases a thread of commonality emerges: the belief that no one will be held accountable for these vicious acts and violent crimes.  Why would these perpetrators believe they could stand in public and physically intimidate women at Yale or distribute direct, recorded evidence of gang rapes within the military or in a small Texas town without fearing prosecution or punishment of any kind? 

The answer to that question at Yale, and in the military, lies in the details that have emerged in both situations that depict institutional tolerance of overt sexual harassment and sexual violence.  Reporting systems set up to discourage the reporting of rapes and sexual assaults; reporting systems designed to minimize any real consequences for perpetrators even when brave victims find the courage to stand down the institutionalized tolerance of these crimes.  In Cleveland, Texas the answer lies in perpetrators relying on the inevitable shame and trauma that leads most victims to never report a rape in the first place.  When you compound that shame and trauma with the victim blaming that surrounds the profound ignorance of what rape is – that rape is not an act of sexual desire but an act of extreme violence and human degradation; then why would women want to be re-victimized by their communities, the media, and the public at-large?  Rape myths persist and until we start viewing rape as being about “violence and power” and “…start treating sexual assault like any other violent crime…” they will continue. 

Congress and the media should be demanding more from the DOD about the military’s rape and sexual assault epidemic.  The perfunctory response that Secretary Gates provided to the House Armed Services Committee on February 16th regarding the class action lawsuit should not be tolerated any longer.  

If Secretary Gates truly “…hadn’t realized that the Department had resisted…” what Representative Niki Tsongas (D- MA) characterized as “common-sense measures” to begin addressing this epidemic, then why has no one in the media asked him why he didn’t? 

When Secretary Gates qualifies his acceptance of accountability with, “I hadn’t realized that the Department had resisted it and I must say, these things sound to me like reasonable actions, so I will take out of this hearing the charge to look into, if we opposed it, why we opposed it, and why we shouldn’t go forward on our own without legislative action.”  So, why has the media ignored this aspect of the story? 

The White House’s behavior strains credibility when compared with their actions.  On one hand, they claim to want to start meaningful and effective discussions about sexual violence on college campuses precisely timed to the OCR’s investigation of Yale.  But at the same time, they are ignoring the horrendous and ongoing epidemic of sexual violence endemic to the military.

The media has an obligation to expose and question this hypocrisy and question the military’s institutionalized indifference; if not during the National Sexual Assault Awareness and Prevention Month, then when? 

The 16 Yale students asked the following question in their March 31st press release: “[a]fter all the incidents of blatant sexual harassment and threatening behavior on Yale’s campus, why must it take an investigation by OCR to convince Yale that there is a serious problem on campus?”  Why indeed!

Analysis LGBTQ

North Carolina’s Governor Is Missing the Point in the Fight Over the State’s Anti-Trans Law

Imani Gandy

If history is any indication, North Carolina very well may find itself on the losing end of this fight.

In what promises to be one of the most closely watched legal showdowns of the year, North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against one another on Monday, each asking a federal court to determine the legality of the anti-trans bathroom discrimination provisions in the state’s recently enacted HB 2.

HB 2 is the grossly discriminatory law that overturns local anti-discrimination laws, bans cities or counties from setting a minimum wage for private employers, and mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate. And even with the relative lack of legal precedent relating to trans people’s civil rights, if history is any indication, North Carolina very well may find itself on the losing end of this fight.

During a Monday press conference, U.S. Attorney General Loretta Lynch announced that the DOJ would be filing a lawsuit seeking a permanent injunction to block the bathroom discrimination provision of HB 2 and accused North Carolina of creating “state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security—a right taken for granted by most of us.”

Speaking directly to the transgender community, Lynch said, “[N]o matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”

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The DOJ had previously given North Carolina Gov. Pat McCrory (R) the opportunity to avoid the expense and hassle of defending a lawsuit against the United States. Principal Deputy Assistant Vanita Gupta gave McCrory an ultimatum in a letter last week: Confirm that the state of North Carolina would not “comply with or implement” HB 2, or risk a civil rights lawsuit and a curtailment of the nearly $861 million in federal funds North Carolina receives annually. Gupta gave the state until this last Monday to think about it and to notify employees that, consistent with federal law, they are permitted access to bathrooms and other facilities that align with their gender identity.

McCrory responded by filing an utterly pointless lawsuit. North Carolina could have easily saved itself the cost of filing, told the DOJ that it would move ahead with HB 2, and just waited to be slapped with a lawsuit. The cases are going to be consolidated anyway. But wasting taxpayer dollars in the persistent effort to oppress marginalized people seems to be a favorite tactic among states with nothing better to do.

Instead of confirming that he would stop the campaign against trans people, McCrory sued the Obama administration in federal court in North Carolina for its “radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered [sic] state employees.”

Title VII prohibits sex-based employment discrimination, among a number of other protections. According to the tortured analysis in McCrory’s complaint, the DOJ is “ignoring the bodily privacy” of state employees, particularly women and girls who, as a result of bathroom equality, could be vulnerable to assault by any sexual predator claiming to be a woman in order to gain easier access to their prey, despite the fact that there is not a single reported incident of a trans person assaulting anyone in a bathroom.

McCrory’s complaint cites a handful of cases out of the Seventh, Eighth, and Tenth Circuit Courts of Appeal, all of which stand for the proposition that Title VII doesn’t protect transgender people as transgender people per se, and that it doesn’t protect people with “sexual identity disorders.” And besides, McCrory argues, even if transgender employees are covered by Title VII, the statute doesn’t prohibit employers from balancing special circumstances they pose with “the right to bodily privacy held by non-transgender employees in the workplace.”

Even setting aside McCrory’s problematic intimation that transgender employees don’t have the same “right to bodily privacy” that cisgender employees do, McCrory’s complaint misses the point.

The issue is not discrimination against transgender people for being transgender people, but rather, as the DOJ pointed out in its letter to Gov. McCrory, the issue is that discrimination against transgender people is discrimination based upon sex, and discrimination based on sex is a violation of Title VII.

Citing the landmark decision Price Waterhouse v. Hopkins, in which the Supreme Court made it clear that discrimination on the basis of “sex” includes differential treatment based on any “sex-based consideration,” the DOJ noted that federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity.

In Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.

It makes sense that the same principle would apply to transgender people. Ann Hopkins was treated differently at work because she expressed her gender in a manner that did not conform to arbitrary societal standards. Similarly, transgender people who are prohibited from using the bathroom that conforms to their identity are being treated differently than cisgender people, because transgender people, as far as some of the courts are concerned, are not expressing their gender in a manner that parts of society deem suitable.

As the 11th Circuit noted in the 2011 case Glenn v. Brumby, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.”

If cisgender people can use facilities for people who share the biological gender with which they identify, then it is discriminatory to deny transgender people that same personal dignity. Full stop.

McCrory doesn’t seem to understand this and is stuck on the notion of “biological sex”: In his complaint, he protests that “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”

One can imagine making the same argument with respect to, say, racially segregated bathrooms: “All state employees are required to use the bathroom and changing facilities assigned to persons of their same race.”

And one hopes McCrory would agree that such an argument would fall flat on its face.

Ultimately, the fight between the United States and North Carolina is about more than just bathrooms. It’s also about conservative panic about the seeming cultural lawlessness of the Obama administration.

Conservative commentators are caterwauling that the Obama administration is rewriting Title VII and its sister act, Title IX of the United States Education Amendments of 1972—which prohibits discrimination in schools—to advance a transgender agenda. They complain that transgender people are not a protected class under Title VII or Title IX, and that extending the anti-discrimination protections found in those statutes to transgender people requires Congress’ stamp of approval.

Notably, McCrory’s complaint is silent on Title IX, presumably because the Fourth Circuit (which is where North Carolina sits) announced last month that it would defer to the Obama administration’s Title IX guidelines, which require schools that receive public funding to permit transgender students to use bathrooms consistent with their gender identity. The Obama administration reaffirmed this guidance in a letter to public schools on Friday.

The primary complaint of McCrory and his cronies is that the Obama administration is redefining “sex,” and that the new definition far exceeds anything that Congress could have contemplated when it enacted the twin statutes in 1964 and 1972. McCrory’s complaint about the “radical reinterpretation” of Title VII underscores that point.

But that’s not necessarily true. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for interpreting and enforcing Title VII under the Obama administration, isn’t redefining “sex” for purposes of the prohibition against sex discrimination in Title VII. Not really. Rather, the EEOC has given the term some context in light of Hopkins and similar cases, in which courts have recognized that sex discrimination includes gender stereotyping.

And the EEOC is well within its right to do so. In 1997’s Auer v. Robbins, the U.S. Supreme Court ruled that federal agencies are entitled to interpret their own regulations as they see fit, as long as their interpretation isn’t erroneous and doesn’t conflict with the plain language of the statute or regulation.

Assuming the North Carolina federal court follows the Auer rule, McCrory won’t have a legal leg to stand on.

McCrory will likely argue that Congress did not intend the term “sex” to mean anything other than “biological male” or “biological female.” But certainly the EEOC’s more expansive interpretation—that sex includes gender identity—is not contradicted by Title VII or by congressional intent. Indeed, the legislative history regarding Title VII is rather sparse because the prohibition against sex discrimination was a last-minute addition to its protections.

Title VII initially was conceived to prohibit racial discrimination in the workplace. Rep. Howard Smith (D-VA) introduced an amendment to add sex discrimination protections to Title VII a mere two days before the House of Representatives was scheduled to vote on it. Smith, who was a vocal opponent of civil rights for Black people, was considered a staunch supporter of women’s rights. (How he felt about Black women—or whether he even knew that they existed—is anyone’s guess.) So any discussion of congressional intent with respect to sex discrimination and Title VII is going to be short-lived.

An argument could certainly be made that Congress was not contemplating that “sex” would mean anything other than “male or female” and that it didn’t intend sex discrimination to encompass gender identity when it passed the statute, but if there’s nothing in the legislative history, then who can tell?

Besides, as a wise man once said, “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

That’s Justice Antonin Scalia writing the majority opinion in Oncale v. Sundowner Offshore Services, a case involving male-on-male sexual harassment. Scalia noted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”

Almost assuredly, neither was transgender bathroom access, but that doesn’t mean denying transgender people the dignity of using a bathroom aligned with their gender identity is not a “principal evil” prime for redress under Title VII.

After all, if it’s good enough for Scalia, it should be good enough for Gov. McCrory.

Roundups Law and Policy

Gavel Drop: When Reporting Rape Gets Students Suspended

Imani Gandy & Jessica Mason Pieklo

Title IX has made some good progress in addressing campus sexual assault, but its protections don't reach everywhere.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Mormon-run Brigham Young University responds to students who report on-campus sexual assault by investigating or suspending assaulted students for honor code violations.

Assisted reproductive technologies continue to push the boundaries of conception and parenting. And we’re used to thinking about frozen eggs or embryos. But what about a man’s sperm after he is dead?

When updating its divorce laws, Mississippi decided domestic abuse was not legal reason enough to justify the state granting a divorce.

Plenty of colleges and universities get exemptions that allow them to discriminate against students and faculty on the grounds of religious freedom. Why won’t the National Collegiate Athletic Association do anything to stop this practice?

A former Missouri State University student has filed a federal lawsuit claiming that the school discriminated against his religious beliefs when it kicked him out of its counseling program because he wouldn’t provide services to gay couples.

David Daleiden was back in a Houston court, trying to quash the indictments against him. He claims that prosecutors are colluding with Planned Parenthood against him. Sure they are, David. Sure they are.

A homeless man who tried to apply for a job at a Wichita, Kansas, abortion clinic while carrying a homemade incendiary device pleaded guilty to explosives charges.