Nineteen veterans, service members sue over military sexual assault

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, a Washington D.C. attorney 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 the documentary about the topic, “The Invisible War.”

Kole Welsh, who was a victim of sexual abuse while serving in the military, speaks at a Friday press conference in San Francisco. (AP Photo/Marcio Jose Sanchez)

Burke filed suit in U.S. District Court in San Francisco Friday morning, 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 virus. 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 was joined at a Friday press conference by advocacy groups and Rep. Jackie Speier, D-San Francisco, who is sponsoring legislation to create an impartial office to review alleged cases of rape and sexual assault 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.

Daniele Hoffman, who was a victim of sexual abuse while serving in the military, speaks at a news conference on Friday in San Francisco. (AP Photo/Marcio Jose Sanchez)

Daniele Hoffman, who was a victim of sexual abuse while serving in the military, speaks at a news conference on Friday in San Francisco. (AP Photo/Marcio Jose Sanchez)

Although Panetta has begun some reforms, such as pushing the decision on whether to prosecute up the chain of command, it’s not enough, Burke said.

“There is no impartiality,” she said. “You cannot have a gatekeeper on the administration of justice.”

Speier added, “It’s time for us not to do what the military wants, but do what’s important for the service members who are serving, put their lives on the line each and every day. If we don’t have the guts to stand up for them when they’ve been assaulted in the military, then shame on us.”

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.

Burke praised the men and women who brought the new lawsuit. She was joined at the press conference by plaintiffs Daniele Hoffman, from Indiana, and Kole Welsh, from Washington state.

“The courage that it takes to come forward, to put your name and your face, your entire being out in the public to explain what has happened, is extraordinary,” she said. “These two young people served our nation when they were in the military. And by being courageous enough to come forward now, they continue to be patriots of the highest caliber.”

Hoffman 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 claims she was victimized by the military. She was isolated and verbally abused. 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.”

Kole Welsh, who was a victim of sexual abuse while serving in the military, speaks at a news conference in San Francisco on Friday. (AP Photo/Marcio Jose Sanchez)

Kole Welsh, who was a victim of sexual abuse while serving in the military, speaks at a news conference in San Francisco on Friday. (AP Photo/Marcio Jose Sanchez)

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. My life is a daily struggle. 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 Fort Lewis in Washington state. It was there in 2007 that he was sexually assaulted by his staff sergeant supervisor. A couple of weeks later, Welsh learned he had tested positive for HIV. He wasn’t the only one.

“Young men that I knew were becoming infected with HIV because of this jerk,” said Welsh, who was discharged shortly after contracting the virus. “He felt like he had a free pass, and he could do whatever the hell he wanted to.”

Welsh said he complained to his superiors 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).”

Plaintiff Kelly Alvesteffer Smith never wanted to report her rape.

Now living in Texas, the 29-year-old Wyoming native said she was forced to cooperate with police investigators after other soldiers heard her scream and saw a man run from her room in the barracks, where she was in a medical hold company at Fort Lewis in Washington in 2003.

She was told, at the time, that the soldier who raped her had signed a confession but her commanding officer told her the Army would have to prosecute her for some unspecified crime if it prosecuted her rapist.

Kelly Smith says she was a 19-year-old soldier from Green River, Wyo., when she was raped by a 55-year old non-commissioned officer in 2003 at Fort Lewis, Washington. He was not prosecuted. (Leah Hogsten, The Salt Lake Tribune)

Kelly Smith says she was a 19-year-old soldier from Green River, Wyo., when she was raped by a 55-year old non-commissioned officer in 2003 at Fort Lewis, Washington. He was not prosecuted. (Leah Hogsten, The Salt Lake Tribune)

“They said they didn’t want to ruin a career based on something like that. That’s what the commanding officer told me,” Smith said in an interview from Texas. “You don’t expect that to happen to you when you’re among people whose job is to protect.”

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.


More on military sexual assault

This is the fifth federal lawsuit of its kind filed by Washington, D.C. attorney Susan Burke, whose work was featured in the documentary The Invisible War. Read a previous American Homecoming post about the documentary.

The Department of Defense and various military service branches create annual sexual assault reports to help address the crime within the military. Read the 2011 report here.

 

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  • Just Wonderin’

    What about the Feres Doctrine, which precludes service members from suing the government?