Human Rights at Home Blog

The Arc Is Bending

By Co-Editor Prof. Justine Dunlap, UMass Law School

Do you hear it? Strain, pause, listen, and rejoice. It’s obscured by much noise and tumult but the arc of the moral universe bent a little more towards justice last week. The U.S. Senate voted 86 to 14 on July 23^rd to change the names of U.S. military bases that were named after confederate officers. The House of Representatives had already and predictably passed its equivalent, although the Senate bill gives the military three years to do this, juxtaposed to the House’s one year. The details will be worked out, but it’s a veto-proof vote.

This vote comes shortly after the Secretary of Defense banned the display of the confederate flag on military bases, albeit in a round-about manner. And on June 30^th, the Republican Governor of Mississippi decommissioned its state flag, which incorporated the Confederate Flag within its design. Citizens of the state will vote on a new flag design in November.

Yes, it’s telling, demoralizing, and unjust that it has taken so long. And the arc’s movement is the result of those who are and have been drum majors for justice; those who have persevered and remained steadfast and optimistic (thank you Congressman John Lewis). And yet it remains a surprising delight that 86 members of today’s polarized Senate voted in favor. A miracle, perhaps. Or just the arc bending a little bit towards justice.

What Does The Constitution Mean To Me?

This past week I had the privilege of attending a performance of What The Constitution Means To Me in New York City.  This particular performance was special because domestic violence advocates from around the country were in the audience. As was Jessica Lenahan whose US Supreme Court Case is a topic addressed by actor Heidi Schreck in the play.  Schreck tells the story of traveling as a 15-year-old to various veteran's organizations giving her speech on the Constitution.  That is how she earned money to attend college.  The walls are lined with framed headshots of white male veterans wearing their slim double-pointed hats.   

The play movingly addresses the Supreme Court's refusal to protect women from violence, and the rollback of women's rights, particularly reproductive rights.  These topics are timely for discussion and are eloquently addressed.

The stage set silently reinforces the power that white men have over women.  And that was the greatest irritant for me.

I appreciate those who served in the military.  Those who were disabled from their military experiences deserve ongoing restorative support without the resistance that many veterans encounter from our government.   

But what we do not need is another veteran memorial, another military park or statue.  A public memorial honoring the women of all genders who have suffered violence at the hands of intimate partners would be welcome.  Memorials to individuals of all genders who experienced sex-based violence, including veterans, are urgently needed.  Public recognition of the indignities suffered by women of color and indigenous women would do much to bring awareness to the intersection of race, ethnicity,  and sex on the spectrum of discrimination and violence against women.  A memorial to all of the women who suffered and the many who died because of war would bring a face to the human suffering war creates.  Perhaps we could refocus suffering as well as heroism.  

Since only the work performed primarily by males is honored in this country -- police, fire, military for some examples -- that is the culture we honor.   The next time that your town wants to erect another statue to male culture, think about protesting.  I would argue that public statues and memorials are unnecessary.  But I realize in an age where civics are no longer taught, and women are largely ignored in history, education happens around public monuments and this is one place where the re-education of America can begin.

 

 

 

Trump Bans Transgender People From Military Service- A Human Rights Slaughter

In an effort to show his conservative base that he has not lost his way, on Wednesday President Trump announced that he is banning all transgender individuals from military service.  President Trump hid behind medical expenses that he claims the government incurs in supporting trans military personnel.  The PBS Newshour estimated that the transgender related medical costs incurred by the government is around $2,000,000 per year.  The military spend approximately $10,000,000 per year on Viagra and related drugs.  The New York Times reported estimates of fewer than 2,500 and later up to 11,000 transgender individuals on active duty.  But the  National Center for Transgender Equality places the number at 15,000.00.   Trump said that he would not accept or allow trans soldiers to serve.  While undefined at the moment, this language indicates that trans individuals on active duty will be forced to leave the service.  The loss of 15,000 military personnel would be significant.

The trans community is among the most disadvantaged in our society.  Trans and other sexually non-conforming individuals face a higher rate of sexual assault and other abuse than the general population.  Housing, employment and other opportunities are limited due to discrimination.  Now the president has banned trans individuals from one path to earning a living that was open to them.  Further, the move implies that trans people are not capable of defending our country and of participating in work that is open to others.  The pronouncement, and the public shaming that it triggers, is cruel.

This latest presidential move points out the ever expanding need for human rights advocacy at home.  

To read more, here is commentary from the New Yorker

UPDATE- Military chiefs are refusing to implement Trump's edict unless ordered to by the Secretary of Defense.

 

 

Pondering US Women Registering for the Draft: Equity?

The Senate passed a bill requiring females who turn 18 to register for the draft .  This requirement would apply to those girls who turn 18  in 2018 or later.  The supporting argument is that since women can serve in all military positions open to men, they should have the same obligations. The bill now moves to the House, where conservative members are opposed to registration expansion.  The bill raises interesting questions around women and safety.

Will the military take any steps to ensure that women are safe from sexual assault and harassment while serving their country?  Men are killing individuals and in mass numbers, at the same time that cultural shifts have resulted in more acceptance of diverse sexual identities, increased racial activism  and the increasing power of women.  What are female recruits going to face as they are forced into one of the most change resistant and oppressive institutions for women?  Yes- many women have risen to impressive ranks of military service, but many more have been sexually assaulted. 

The long term benefits of women serving in the military could be significant. In the very long term, we might have a military where decision making is balanced by the inclusion of both feminine and masculine perspectives.  Those veterans who promote male privilege will lose their edge.   Jobs giving veterans preference due to their status would now be open to the missing half of the population. Often ignored, PTSD in females might be recognized and treated more seriously. 

But in the short term - which could be decades- women risk assault in every way by their male peers and superiors.  As assault victims, females soldiers who report are more likely to be discharged without compensation or other redress while male perpetrators are unpunished. The privileged among us who promote war rely on no-active-draft status to save their sons from forced service.  The class equity that draft brings will be less likely as the privileged resist implementation of a draft that results in their daughters' deployment.  

Now that military women have access to all positions open to men, will we assume that we are post- misogyny in the armed services?  Or is this move nothing less than backlash? Backlash against women has a long history.  The attempt to universalize the successes of a few woman historically created a backlash for women. Here are a few:

            "No-Fault" divorce discouraged women from addressing the truth of their abusive  relationships.

            When job discrimination became illegal and women were beginning to make employment inroads, family court judges  denied or limited alimony telling women who had not worked in decades to return to the workforce.

            Women on the job have been punished for being female.  Namely, motherhood more often results in their losing jobs or status within the workplace, as well as decreased pay.  Mothers are expected to take care of sick children, aging parents but are not compensated when they do so.

            Now that sexual assaults in the military are being exposed, the military has changed its definition of assault to make it more  difficult for victims to qualify for redress.

What does this mean for women soldiers who might make up half the force?  The first few generations of female soldiers continue to suffer from male dominance and abuse. The culture may change, eventually, but change in the military does not come quickly.

Does the registration bill promote equity or punish it?  Will President Obama sign the bill if passed?  Malia will not be required to register but Sasha will.   

 

    

    

    

 

 

 

 

 

Sexual Assault at Westpoint: Leadership's Disregard of Human Rights

 Recently, a former West Point cadet filed suit based upon sexual harassment and sexual assault she suffered during her time at the academy.  The complaint describes not a system of neglect in failing to safe guard female cadets, but a deliberate failure to protect cadets from sexual assault while placing the burden of prevention on women. 

An amicus brief filed by Sandra Park of the ACLU outlines the lack of administrative response to sexual assault and other gender based harassment and violence.  Among the practices engaged in at the academy are the following:

        Permitted sexist chanting and comments directed toward female cadets.

        Provided sexual assault training that placed the burden on women.

        Required mandatory testing for sexually transmitted diseases for female cadets only.

        Ignored the Department of Defense's directives on sexual assault reporting.

        Fostered a system of retaliation against sexual assault survivors who filed complaints.

        In 2010, the Department of Defense found that 51% of female cadets  experienced gender related harassment.

        The same study found that 94% of female cadets experienced sexist behavior.

        In the same year, 9% of female cadets reported experiencing sexual assault.

        94% of those women reported their assailant as a fellow cadet.

The Defendants in the case, both of whom were responsible for cadet conduct and sexual harassment prevention, are, in the words of the amicus brief, "subject to suit for creating the policies and customs that caused or permitted the violation of Doe's equal protection right to an education free from sex discrimination."  The court has permitted this equal protection complaint to proceed.  The government has appealed, which resulted in the amicus brief filed on behalf of the ACLU and others.

Citing human rights law, the ACLU argues that "the right to state protection from gender-based violence and a government's concomitant due diligence obligation to effectively prevent, respond to, and remedy such violence is now so universally accepted that it has acquired the status of customary human rights law."

 Indeed, "gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of [CEDAW]."

One question asked at one of the presidential debates is whether or not the candidates favored including women in any potential draft.  The answer that none of the candidates gave is that until the military protects members of vulnerable populations from sexual assault, the question is premature.

 

 

 

 

 

 

US Military Responds to Sexual Assault: An Update

In contrast to the bleak news reported yesterday, the U.S. Navy is continuing its proactive response to the needs of sexual assault survivors. The Navy is  considering a fast track discharge process for personnel who have been sexually assaulted and apply to leave the Navy as a result.  For those who remain in service, the Navy is developing a system that will prevent the alleged perpetrator and the survivor from being placed in the same command, even years after the incident that led to the allegations. Admiral John Richardson, Chief of Naval Operations, is sensitive to the situation where an alleged perpetrator might not be discharged, for example where there is no conviction.  As reported on Military.com, Richardson said that the Navy  is considering development of an app based on those in use on some college campuses that will make it easier to report sexual harassment or assault. "Such a tool would help remove stigma for survivors, making reporting data more accurate and possibly reducing stigma preventing male sexual assault victims from coming forward."

UN Peacekeepers Commit Sexual Assault Crimes

U.N. "Peacekeepers" stationed in the Central African Republic have been exposed for paying for sex with girls.  The prices paid ranged from 50 cents to $3.00.  Not surprisingly, the girls are part of a prostitution ring organized by boys and young men pimps, in this instance from M'poko, a camp for the internally displaced. The offending soldiers were from Gabon, Morocco, Burundi and France.

 The Washington post reported the most recent news, but the UN learned of the behavior last summer.  While the headlines typically read that U.N. Peacekeepers paid young, underage  girls  for sex, perhaps a better headline would be that UN Peacekeepers supported a local prostitution ring in the sexual abuse of young girls.  I don't think that anyone will argue that the thirteen year old girls voluntarily participated as sex workers as a lifestyle choice.  Their circumstances of being displaced, in addition to their sex and age, made them particularly vulnerable.  Also last summer, Amnesty International reported the rape of a 12 year old girl by a U.N. Peacekeeper.  After initially denying reports of sexual exploitation, the UN is now investigating.  

The story of the Peacekeeper exploitation was reported by Human Rights Watch in August. As  Sarah Taylor reported, the UN at last may be shifting the way it views sexual abuse and exploitation, which has been reported in many countries in addition to CAR.  Rather than consider these actions as conduct offenses, the UN, according to a report issued by the Secretary General, is encouraged to view this abuse as conflict-related sexual violence.  In September, Secretary General Ban Ki-moon announced several initiatives including banning anyone with a history of sexual violence from serving with the UN.

The UN and other military authorities avoid, however, the central issue of why sexual abuse and exploitation is not the first issue addressed whenever troops are deployed.  Crimes of sexual abuse against women and children is a documented reality around the world, but particularly for areas of conflict.  Before the UN, or any individual country, sends troops to protect elections or assist refugees, the first mission might be to safeguard the residents from abuse, particularly sexual violence.  Other missions are secondary.

 

 

Women in Combat

  Yesterday, the government announced that women will be permitted to apply for or be assigned to any position within the armed forces.  This includes combat based positions.  In one of the last situations of overt sex discrimination, women were excluded from consideration for many combat positions, even though many found themselves in combat situations.  With the latest policy change, women may apply for all combat positions, including front line ones.  Similarly, they may be assigned to combat by the chain of command.

 While the Marines, through now Chair of the Joint Chiefs of Staff Joseph Dunford, requested discretion to determine which positions would be open to women soldiers, Secretary of Defense Carter made clear that there would be no exceptions to the policy change.

The removal of this disqualification raises the issue of whether or not women will be subject to selective service requirements.  That will be a discussion for another day and one on which Secretary Carter refused to comment. 

Secretary Carter said that the Pentagon "can't afford to omit half of America's population from consideration".

He added that since the 1970s, women have been able to attend U.S. service academies, and that in the early 1990s women's military roles were expanded, with each branch allowed to make some exceptions that kept women out of combat. 

Ultimately, we can thank four courageous servicewomen who sued then Secretary of Defense Panetta for the failure of the armed forces to permit women in combat roles.  Within a few months of suit being filed, Panetta agreed that gradually women would be allowed in combat positions.  Yesterday the end to this particular discrimination became final.

 

 

Human Rights Violation Lawsuit Filed Against US Torture Psychologists

Physicians for Human Rights announced its support for a lawsuit filed by the ACLU against two psychologists accused of designing torture mechanisms.  The psychologists, Bruce Jessen and James Mitchell, are claimed to be the architects of the government's post-9/11 torture schemes. Physicians for Human Rights  asks, however, that the lawsuit not be the only legal action taken as a result of the torture revelations.  The organization demands a criminal investigation and prosecution of all of those who are responsible for torture beyond the psychologists. 

Jessen's and Mitchell's actions were shocking.  They developed a program of brutal, systematic torture that it claimed was based in science.  The program was based in junk science but was sold to the CIA for $81,000,000.  You read correctly.  Jessen and Mitchell received eighty-one million dollars for a program that delivered shockingly inhumane treatment.  It is difficult to assess which is worse:  psychologists who are charged with doing no harm creating and profiting on a program whose sole purpose is to deliver excruciating torture; or a government that would spend an incredible amount of money for such a program.

Physician for Human Rights reports:

"Mitchell and Jessen also kept detailed logs of interrogation sessions in order to analyze detainees’ reactions to torture, calibrate the methods used, and provide the Bush administration with false assurances that such practices were “safe” and “effective.” Without informed consent, collecting such information constitutes unlawful research and experimentation. PHR has previously documented the CIA’s human experimentation in its watershed 2010 report, Experiments in Torture, and 2014 analysis of the Senate Intelligence Committee’s report on CIA torture, Doing Harm."

Guantanomo Update

Following up on a recent post by Deborah Popowski, we report the following from  Washington Week on Human Rights"

 Last week, Secretary of Defense Ash Carter reiterated his and the administration’s commitment to closing the U.S. detention facility at Guantanamo Bay, Cuba, by the end of the president’s second term in office. Carter stressed that he intends to work within the law to transfer those detainees who have already been cleared by relevant agencies. He also said that that the administration will soon send to Congress a plan for the remaining detainees who are not eligible for transfer. Carter indicated the plan will include bringing a number of detainees to the United States for continued detention and that assessment teams are currently visiting potential detention sites across the United States. Both the military and the Bureau of Prisons have safely detained very dangerous criminals, including terrorists and mass murderers, and are well-equipped to continue to do so. Human Rights First has said that any plan to shutter the Guantanamo facility should include: expedited transfers of cleared detainees; an increased pace of Periodic Review Board hearings, which determine whether a detainee still poses a threat to the United States or is cleared for transfer; and stronger engagement with Congress, including vetoing any legislation that prevents Guantanamo from being closed.

From the White House to the Military: (Mostly) Gender Good News

Good News:   The National Center for Transgender Equality celebrates the appointment of Raffi Freedman-Gurspan who was appointed by President Obama as the first openly transgender staffer.  Freedman-Gurspan is appointed as an Outreach and Recruitment Director for Presidential Personnel.  Freedman-Gurspan advocated for the Center's Racial and Economic Justice Initiative.

Mixed News:   Also last week, A U.S. Navy admiral says that SEAL teams will be opened to women and last Friday, two soldiers became  the first women to graduate from the Army's Ranger School located at Fort Benning Georgia.  1st Lt. Shaye Haver and Capt. Kristen Griest are both West Point graduates. This is the first year that women were permitted to attend Ranger School. 

In a gratuitous statement reassuring us that the females soldiers are expected to become an alternate form of  male soldiers, the Army spokesman said that in accommodating the female rangers, the Army did not change its standards at all. Whew!  

These changes follow the 2013, Pentagon announcement that it is considering lifting its ban on women serving in combat roles and gave the military until the end of 2015 to take a position on whether any jobs should continue to be off-limits to women. 

Ending Sexual Assault in the Military: Finding Paths Forward

Sital Kalantry submits this post written by one of Liz Brundige's students following the  conference  “Sexual Assault in The United States Military: How Far Have We Come,”  hosted by the Avon Global Center, the New York City Bar Association’s Sex and Law Committee, the Avon Foundation for Women, Protect Our Defenders, the ACLU, and the New York City Bar Association’s Committees on Military Affairs and Lesbian, Gay, Bisexual and Transgender Rights.  

Amanda Reynoso-Palley writes:

 Last fall, I joined a project addressing sexual violence in the U.S. military as part of Cornell Law School’s Global Gender Justice Clinic.  My work focused on the use of international human rights legal tools to address military sexual assault.  On February 19, 2015, I travelled to New York City to attend an event I had been eagerly awaiting: “Sexual Assault in The United States Military: How Far Have We Come.”

Sexual violence in the military is perpetrated at alarming rates.  According to one study, one in three service women experiences some form of sexual violence while serving in the military. Though the government recently implemented reforms to improve the way the military handles sexual violence in its ranks, it has not gone far enough.  The decision whether to prosecute the accused still rests in the hands of the accused’s commanding officers rather than an independent authority. Also, due to the longstanding judicial Feres Doctrine, service member victims of sexual violence are precluded from suing the military in civilian courts.  If the military justice system fails victims of sexual violence, they have no other legal recourse.

 After seeing how our military and civilian justice systems have failed to protect those who so bravely volunteered to protect us, the Global Gender Justice Clinic decided to pursue international remedies.  I joined a team that brought the claims of 27 service member victims of sexual violence (whose cases were dismissed by federal courts) to the Inter-American Commission on Human Rights (IACHR). We submitted two petitions, one in January 2014, and another in January 2015, requesting that the IACHR hold the United States government responsible for violating survivors’ human rights.

 Meanwhile, last November, the Clinic, together with its partners, submitted a shadow report to the U.N. Committee Against Torture to inform its review of the United States’ compliance with the Convention Against Torture.  The report and related advocacy helped the Committee conclude that the United States should take further measures to ensure the prevention and prosecution of sexual violence in the U.S. military.  

 In a few weeks I will be travelling to Geneva, Switzerland to pursue a third international human rights strategy.  This May, the U.N. Human Rights Council will review the United States’ compliance with its human rights obligations as part of the Universal Periodic Review process.  In anticipation of this review, the Clinic and its partners submitted a shadow report highlighting the United States’ failure to adequately respond to military sexual assault.  In Geneva, we will engage with representatives of U.N. Member States in the hope that the Council’s report will address the United States’ response to military sexual violence.

 I was eager to hear the speakers at the event in New York City contribute to this discussion.  While presenting the keynote address, Tracy Robinson, President of the IACHR, explained that sexual violence is a human rights violation that states have an obligation to investigate, prosecute and punish.  She cited multiple cases in which the Inter-American human rights system held that sexual violence perpetrated by military members constituted human rights violations.  She stressed that the United States cannot stand apart from the other OAS Member States on grounds of U.S. exceptionalism.  She concluded by noting “international human rights law must become an important tool and mechanism for ending impunity not just in the United States but everywhere.”

 After the keynote address, four expert panelists discussed important steps that recently have been taken to address military sexual assault and the challenges that remain.  Sandra Park, senior staff attorney with the ACLU Women’s Rights Project, noted that sexual violence in the U.S. military should be seen as part of the larger issue of gender-based violence and sex discrimination in the U.S., and as part of broader concerns about the military justice system and the ways that command influence undermines the due process rights of both victims and the accused.  

 Elizabeth Hillman, Provost, Academic Dean, and Professor of Law at University of California Hastings College of Law, spoke about her experience as a member of the Response Systems to Adult Sexual Assault Crimes Panel that was given the congressional mandate to review the systems used to investigate, prosecute and adjudicate military sexual assault.  Quoting from her separate statement to the Panel’s final report, she argued that its failure to call for the removal of prosecutorial discretion from commanders prevented the military from responding fairly and robustly to sexual assault.

 Greg Jacob, Policy Director of Service Women’s Action Network and a former U.S. Marine, noted that enacting legislative change can be difficult due to lawmakers’ deference to the military. He argued that, in combatting sexual violence, we must ensure that the military records data and uses it to effect policy changes. 

 While acknowledging that more work needs to be done, Major General John Altenburg Jr., a retired U.S. Army officer who supported the Response Systems Panel as a subject-matter expert, highlighted the reforms the military has made to address sexual violence.  These include changes to the military investigation system that ensure every allegation of sexual violence is investigated by impartial members of the Criminal Investigation Command.  Major Altenburg argued that commanders’ prosecutorial discretion should not cause concern as only commanders holding the rank of Colonel or Navy Captain and above hold this discretion and these commanders are impartial by virtue of overseeing 3000 soldiers.

 By the conclusion of the event, one thing seemed apparent: everyone agrees that sexual violence in the military is a problem, but each speaker had different views on how best to solve it.  Despite the lack of consensus, it was inspiring to see a room filled with experts all working to combat sexual violence in their own way and sometimes in collaboration with each other.  After hearing the inspiring words of Commissioner Robinson and Sandra Park, I remain convinced that we must use international fora to place pressure on the United States.  However, I realize that international strategies alone may not remedy the current situation, and it was encouraging to hear the strategies being used domestically.  I am hopeful that the combined work of all involved will eventually ensure that all victims of sexual violence in the military receive the justice they deserve.

 ***