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Posted on Aug 27, 2019 Print this Article

Unfounded Sex Assault Charges Trending Up in DoD Reports

Air Force Gen. John Hyten, nominated to become Vice Chairman of the Joint Chiefs of Staff, has become the face of injustice done to military personnel who encounter unproved allegations of sexual assault[Update: On September 27, the Senate confirmed Gen. Hyten to be Vice Chairman of the Joint Chiefs, 75-22.]  Accusations that cannot be substantiated are unjust and often career-ending, but they are not unusual.  Annual Pentagon reports indicate that they happen all the time.

According to figures published in annual reports of the Pentagon’s Sexual Assault Prevention & Response Office (SAPRO) since FY 2009, almost one-in-four completed cases involving sexual assault have been deemed “unsubstantiated” due to “insufficient evidence” or “allegations unfounded.”  

CMR prepared this graph with data that is usually buried in obscure tables and Appendices attached to Defense Department SAPRO reports.  Click on the link for details:

DoD Annual Reports Show Significant Increases in Sexual Assault Accusations Deemed “Unfounded”

From FY 2009 through FY 2018, unsubstantiated reports in completed cases more than doubled, from 13% to 28%.  The fact that 3-in-4 cases are substantiated and punished accordingly should not diminish concerns for the 1-in-4 innocent persons who are falsely accused. 

“Truth” vs. Facts 

Former Vice President and presidential candidate Joe Biden recently stated at a campaign rally, “We choose truth, not facts.” [1]  This peculiar statement could describe ideologues who choose politically correct “truth” over facts in matters of sexual assault.  In their minds, all accusations of assault are true, even if there is no objective evidence to support the allegations. 

General Hyten, who currently serves as head of the U.S. Strategic Command (STRATCOM), testified during a July 30 confirmation hearing before the Senate Armed Services Committee (SASC).  Committee members and presidential campaigners Kirsten Gillibrand (D-NY) and Elizabeth Warren (D-MA) were not present to ask questions of reflecting their version of truth as they see it in the #MeToo era, but Sen. Mazie Hirono (D-HI) was there.

Sen. Hirono asked Gen. Hyten about allegations of sexual abuse that Army Col. Kathryn Spletstoser had filed against him last year. [2]  Col. Spletstoser, who had spoken privately to several senators and was present in the Committee hearing room, had accused Hyten of various conduct violations, inappropriate touching, and an explicit, salacious sexual assault that occurred when she and Gen. Hyten allegedly were alone.

The charges, if true, would have ended his career and rightly so.  But the Air Force Office of Special Investigations (OSI) closely examined all allegations made against Gen. Hyten and found none of them to be true.

This did not deter Sen. Hirono from saying, “Corroborating evidence, the lack of does it not necessarily mean that the accusations are not true.” [3]  As Joe Biden’s comment suggested, some #MeToo advocates choose to believe their version of “truth” over the facts.

Mollie Hemingway, senior editor at The Federalist, has reported that 53 OSI investigators had interviewed 63 people and conducted forensic reviews of thousands of emails, travel records and other documents.  The exhaustive probe found no evidence to corroborate anything that Col. Spletstoser had charged, but investigators confirmed that she had a history of creating a “toxic workplace” for her subordinates and filing unsubstantiated claims against supervisors. [4]

Air Force Times reported that multiple witnesses told investigators that they had never seen Hyten act inappropriately or unprofessionally toward Col. Spletstoser.  Instead, colleagues raised questions about her sometimes bizarre behavior and apparent retaliation against Hyten for relieving her of duty for cause. [5]

OSI is known for conducting thorough investigations that examine all charges in terms of evidence, not emotion.  Former Air Force Secretary Heather Wilson, who oversaw the Inspector General probe and testified at the hearing said, “General Hyten was falsely accused and this matter should be set aside as you consider his nomination.”  [6]

Sen. Martha McSally (R-AZ), a self-identified victim of sexual assault, said that she had personally reviewed the investigators’ work and came to the same conclusion:  General Hyten was “innocent of these charges.”  [7]

Retired Army Maj. Gen. Heidi Brown also reviewed and endorsed the findings of OSI investigators, writing in a Wall Street Journal op-ed, “There must be consequences for dragging an innocent man and his family through hell.” [8]

The committee voted 20-7 to send Hyten’s nomination to the floor for a vote to occur after the Senate recess.  This remarkable development diverged from #MeToo assumptions, relying on facts instead of a narrative that the accuser and her allies had not supported with evidence.

Some “Solutions” Could Make the Problem Worse

Because Pentagon leaders and most members of Congress are not taking this problem seriously, numbers of unsubstantiated sexual assault cases probably will rise even higher.  Most “experts” don’t talk about this issue, and some have proposed legislation that would continue skewing legal procedures in favor of the accuser at the expense of the accused.

Sen. Gillibrand, for example, repeatedly has sponsored her Military Justice Improvement Act, which would remove sexual assault cases from the jurisdiction of responsible commanders in the military chain of command. [9]  Senate Armed Services Committee Chairman James Inhofe (R-OK) rightly rejected the Gillibrand approach, as the committee has done in the past, and instead approved most elements of legislation sponsored by Sen. Martha McSally. 

The McSally legislation incorporated in the still-pending Senate version of the National Defense Authorization Act (NDAA) for 2020 supports persons who report sexual abuse, but also would provide more protections for persons accused. 

The military is obligated to do a thorough investigation (not just a cursory review) of every allegation, but the sort of in-depth investigation the SASC received on Gen. Hyten is not the typical investigation of alleged sexual crimes involving ordinary soldiers.  The military services don’t have the personnel and resources to do a Gen. Hyten-type probe into every allegation. 

But regardless of rank, those on the receiving end of false accusations are just as devastated and their lives are just as ruined as a Gen. Hyten or a Tucker Carlson if they cannot prove the negative.  This is why authorities must guard due process and always seek justice for both the accuser and the accused.

CMR remains concerned about “Safe to Report” language, offered in both the House and Senate, which would encourage adoption of Air Force practices that shield accusers from punishments for their own “minor collateral misconduct.”

Specific examples in the House bill include factors known to increase risks of misconduct, both voluntary and involuntary; e.g., use of alcohol, consensual intimate behavior, adultery or fraternization, presence in off-limits areas, and other misconduct specified in regulations. 

Circumstances can be taken into consideration, but individuals are responsible for their own actions.  Effective immunity for engaging in “minor collateral misconduct,” would weaken deterrence against these behaviors. 

In some cases, the lack of accountability for self-serving accusations following consensual misconduct could increase the risks of injustice for the accused. [10]  The paramount goal should be due process and justice for both the accuser and the accused, not politically correct verdicts that are not supported by evidence. 

Sex, Lies, and Rape

In the #MeToo era, many opinion leaders insist that women never lie when complaining of sexual abuse.  This makes no more sense than believing that all women think alike.  Today’s hyper-sensitivity discourages experts in the field from commenting on false accusations, but previous analyses highlight the importance of objectivity when investigating charges of sexual assault.

Linda Fairstein, a former head of the sex-crimes unit of the Manhattan District Attorney’s office, commented on her experiences with unfounded claims of forcible rape: 

“Having worked in this field for decades, I’ve found this phenomenon especially painful to witness.  Innocent men are arrested and even imprisoned as a result of bogus claims, and the precious resources of criminal justice agencies are wasted. . . [T]hese falsehoods trivialize the experience of every rape survivor.” [11]

Rape investigations are inherently difficult.  Sex crimes usually occur in private, with few witnesses.  Alcohol dulls memories, and “he said, she said” stories frequently are inconsistent. 

Charles P. McDowell, Ph.D., formerly of the USAF Special Studies Division, incurred the wrath of victim advocates by spotlighting the reality of false accusations in a publication of the USAF Office of Special Investigations (OSI):

“The ambiguity of many rape allegations is a genuine test of an investigator’s ability; an inherent conflict arises between the investigator’s obligation to accept the victim’s complaint as legitimate and his obligation to remain open to the possibility that there may be a ‘hidden agenda.’” [12]

The only way to minimize the problem, wrote McDowell, is to understand the dynamics of false rape allegations and, in the process, learn the hallmarks of truthful accusations.  This effort is essential not only for the accuser’s sake, but to avoid grievous injustice to the accused.

Trained investigators recognize “shorthand” cues that are not infallible but are useful in assessing the validity of complaints.  No single element is definitively diagnostic, but a combination of unusual factors suggests the possibility of a false complaint.  In general terms, for example:

  • Truthful complaints are usually prompt; false ones often are delayed for weeks or months.
  • False allegations are frequently vague about the nature of the assault, the types of sex acts, level of resistance, and even the place where the alleged assault occurred.
  • False accusations usually lack corroborating evidence of violence; i.e., signs of disruption at the crime scene, damage to clothing consistent with a struggle, or serological (blood) evidence.
  • Carefully placed wounds reported with indifference may be an indication that they were self-inflicted.
  • Complainants with emotional problems sometimes file false reports that “copycat” previous crimes.
  • Truthful victims usually report unpleasant details without becoming outraged when asked to corroborate what happened.
McDowell also noted that even those who are emotionally prone to make false allegations can, indeed, be true victims of rape.  Even more reason to maintain professionalism, objectivity, and compassion when investigating sexual misconduct and rape.

Every allegation is different, and appearances often deceive.  Certain indicators should be investigated in order to separate truthful allegations from fabricated ones.  Primary motives for false reports, which are not uncommon, include:

  • Jealousy or Revenge – Classic examples occur after an affair breaks up.  Emotional accounts can appear convincing, but paper trails, such as travel receipts, often belie accusations.
  • Emotional Problems/Desire for Attention – Fox News host Tucker Carlsonfaced this problem in 2001.  A woman he had never met claimed that he had drugged her at a Kentucky restaurant and sexually assaulted her with violence.  Many sleepless nights and $14,000 in legal fees later, the accuser dropped the charges.
  • Need for an Alibi – Sex crime investigator Fairstein compared alibi allegations to Pinocchio’s nose – a white lie that grows and grows.  An egregious example of this occurred in the aftermath of the Navy’s Tailhook scandal.  [13]Ensign Elizabeth Warnickaccused two of her colleagues of gang-rape.  Her accusations devastated the men’s careers, but Warnick admitted later that she had concocted the story to mislead her boyfriend about her own behavior at Tailhook.  Personal conduct rules at the military service academies, which do not apply at civilian colleges, often create perverse incentives for alibi reports.
  • Ideology/Politics – The campaign to defeat the nomination of Judge Brett Kavanaugh to become a Supreme Court Justice comes to mind.  Kavanaugh’s accuser, Christine Blasey-Ford, was unable to produce verifiable evidence corroborating her sensational accusations.  A 400-page post-confirmation Senate Judiciary Committee report affirmed that Blasey-Ford's charges were baseless.  Her attorney, Debra Katz, admitted that her client had (falsely) accused Brett Kavanaugh in order to protect abortion and Roe v. Wade. [14]

It is not clear why the nomination of Gen. John Hyten to become the military’s second highest officer has been targeted for defeat, but his case is not the first to raise questions about military injustice resulting from questionable accusations.  For example:

  • In 2017 a Virginia court ordered former West Point cadet Susan Shannon to pay $8.4 million in defamation damages for falsely accusing Col. David “Wil” Riggins of rape.  The U.S. Army Criminal Investigation Command investigated Shannon’s allegations and found that there was no testimonial or physical evidence to corroborate her accusations against Riggins. [15]
  • In a 2018 Coast Guard case, the U.S. Court of Appeals for the Armed Forces threw out the 2012 conviction of an enlisted man that the court described as “a stain on the military justice system.”  Judge Margaret A. Ryan, who delivered the 5-4 opinion, chastised four admirals who played a role in assembling a seven-member jury that included five women, four of whom held jobs as sexual assault victim advocates.  Adm. Paul F. Zukunft, the former Coast Guard Commandant and proponent of liberal causes, claimed that he was unaware of the jury stacking, but the Appeals Court rejected his excuse. [16]

 False Accusations of Sexual Assault -- What Can be Done?

The first step in solving a problem is to acknowledge that the problem exists.  The July 30 hearing on the nomination of General John Hyten was an encouraging step, but more needs to be done, starting with confirmation of Gen. Hyten as Vice Chairman of the Joint Chiefs of Staff. 

Lawmakers writing the defense bill for FY 2020 also should decline to pass ill-advised legislation, such as Sen. Gillibrand’s attempt to change military justice law.  The June 2014 Report of the Response Systems to Adult Sexual Assault Crime Panel strongly opposed Sen. Gillibrand’s legislation and made numerous recommendations to ensure fairness and due process for both accusers and the accused. [17]

In summary, the following general principles should be applied in matters of sexual assault:

  • Commanders should avoid creating perceptions that they expect pre-conceived findings or trial verdicts that compromise an accused servicemember’s right to a fair investigation, even-handed access to witnesses or evidence, and the presumption of innocence.
  • To achieve due process and justice, both the accuser and the accused should be provided equally competent legal counsel who can press the case for each side in court, without political or command interference.
  • Persons reporting harassment or abuse should be treated with respect and protected from retaliation, but individuals who file false accusations for self-serving reasons should be held accountable.
  • The Department of Defense should discontinue or stop misrepresenting Workplace and Gender Relations (WGRA) online surveys and terminate contracts with RAND and other consultants whose recommendations have been ineffective or counterproductive. 
  • Pentagon officials should reinforce the long-standing principle that personal conduct regulations in the military apply 24/7, on-base and off-base, for as long as a person remains in service.
  • The Trump Administration should appoint or promote military and civilian officials who will restore sound priorities and commonsense policies that recognize human failings and the inherent power of sexuality, while encouraging discipline rather than indiscipline.

Sexual abuse in the military is a devastating crime.  Military women and men are not free to leave their posts when abuse of any kind occurs.  And hapless servicemembers whose profiles are not as high as Gen. Hyten’s do not have resources to fight ruinous accusations that are false. 

Military people don’t need more time-wasting media events, emotional arguments, or more legislation that is based on the idea that accusations alone constitute proof of a crime.  Steadily increasing numbers of sexual assault – both substantiated and unsubstantiated – are not acceptable. 

The Department of Defense should stop doing the same things over and over, expecting different results.

* * * * * *

The Center for Military Readiness is an independent public policy organization that specializes in military/social issues.  More information is available at www.cmrlink.org.



[1] Tristan Justice, The Federalist, Joe Biden Endorses Ocasio-Cortez’s Support for ‘Truth Over Facts,’ Aug. 9, 2019.  Rep. Alexandria Ocasio-Cortez argued during a “60 Minutes” interview with Anderson Cooper that her version of moral superiority is more important than getting the facts right.  Her claims about Pentagon spending were fact-checked as false, earning four Pinocchios from the Washington Post.

 [2] Lolita Baldor, AP, Officer Alleges Sexual Misconduct by General, July 11, 2019.

[4] Mollie Hemingway, The Federalist, Exclusive Air Force Report: Hyten Accuser Has History of Unsubstantiated Allegations, Aug. 5, and Mollie Hemingway, The Federalist, Report: Hyten Accuser Told to Cease Threats and Treat Anger Issues Months Before Sex Claims, Aug. 16, 2019.  Officials at STRATCOM, including General Hyten, encouraged Col. Spletstoser to get help and counseling for anger issues, vindictiveness, and bizarre behavior, such as suicide threats that her colleagues had observed.  

 [5] Stephen Losey, Air Force Times, OSI Found No Proof of ‘Unprofessional Relationship; in Hyten Sexual Assault Investigation; Polygraph Was Inconclusive, Aug. 16, 2019.

 [6] Senate Armed Services Committee Stenographic Transcript, Tuesday, July 30, 2019, pp. 12-14.  Also Jamie McIntyre, Washington Examiner, John Hyten’s Subdued, Not-So-Bad Senate Hearing May be Just Enough to Get Him Confirmed as Nation’s No. 2 Officer.

 [7] Stenographic Transcript, pp. 27-32.  According to Sen. McSally’s office, Defense Department and SASC protocols preclude public release of investigation details, which were provided to members of the SASC considering the Hyten nomination.

 [8] Heidi Brown, Wall Street Journal, The Truth About Gen. John Hyten, Aug. 7, 2019.

 [9] Sen. Gillibrand has waged a relentless campaign to alter the military justice system since 2013.  Among other things, her Military Justice Improvement Act would remove from military commanders’ decisions regarding prosecution of sexual assault and other serious crimes, shifting those cases to military lawyers who do not have (and do not want) responsibilities for command.  Removing local commanders from prosecution decisions would not guarantee confidentiality or preclude retaliation, which sometimes occurs when peers feel compelled to take sides.  Nor would Gillibrand’s bill guarantee convictions and punishment when evidence is lacking.  In fact, lawyers outside the chain of command may not pursue marginal cases at all.

 [11] Cosmopolitan, Why Some Women Lie About Rape, Nov. 2003, updated for an edition available on Kindle titled “From the Files of Linda Fairstein.”

 [12] Forensic Science Digest, “False Allegations,” Vol. 11, No. 4, Dec. 1985, pp. 56-76.  This study is no longer available for review, but in general, annual Defense Department SAPRO data on unsubstantiated allegations support MacDowell’s points.   

 [13] Elaine Donnelly, National Review: The Tailhook Scandals, Mar. 7, 1994.

[14]  Katie Pavlich, Townhall, Christine Blasey Ford’s Lawyer: Okay Fine, Protecting Abortion Was Part of Why She Accused Kavanaugh, Sept. 4, 2019.

 [16] Rowan Scarborough, Washington Times, Coast Guard Rape Conviction Overturned After Court’s Scathing Attack on Women-Packed Jury, Jan. 28, 2018.  Adm. Paul F. Zukunft approved severe punishment of Petty Officer John C. Riesbeck, even though, as the Appeals Court wrote, “The government’s case was very weak, primarily based on the testimony of [name redacted], the putative victim, who was unable to remember many of the events surrounding the crime due to alcohol use and her testimony was controverted by other witnesses at trial.”  The Appeals Court further wrote that the trial judge “failed to conduct even a rudimentary investigation” into defense attorneys’ complaints of an unfair jury.

[17] Jennifer Hlad, Stars & Stripes, Sexual Assault Panel: Keep Prosecutions in Chain of Command, June 30, 2014.

 

 


Posted on Aug 27, 2019 Print this Article