Guilty Unless Proven Innocent is the Army Norm

For most of the history of the Army, what would in the 21st century be known as Equal Opportunity (EO) and Sexual Harassment and Rape Prevention (SHARP) programs were sorely lacking effectiveness. Soldiers could face bias, harassment, even sexual assault, with little or no real recourse. Soldiers could report the offenses, but leadership often swept accusations under the rug.

In the mid-2000s a female senior non-commissioned officer (NCO) was raped by a male officer. She would not file a complaint against the man because, “nothing’s going to happen about it.” This was all too common.

Forward to the early 2010s and things began to change. The Army threatened commanders that if EO or SHARP were not properly investigated, and a blind eye was turned, their careers would be endangered. EO and SHARP complaints began to be taken seriously. Investigations occurred. Guilty perpetrators were held accountable. Accusations soared because soldiers felt more comfortable reporting. But the pendulum continued to swing away from the do-nothing of the past towards the #metoo and #trustallwomen knee-jerk reactions of the late teens where accusations equal guilt.

It's important to note that harassment, assault, and discrimination does still occur in the Army. But not every accusation is true. Not everyone who is found guilty has done something wrong. Many soldiers see EO and SHARP allegations being weaponized against leaders and fellow soldiers.

In the Basic Training or Advanced Individual Training (AIT) environments, new soldiers have found that making an accusation against another soldier can ruin the career of a drill sergeant they don’t like. They can get other students they are annoyed by investigated and potentially removed to another class, or out of the Army. This continues out into the rest of the Army, damaging individuals, careers, and an Army struggling to retain soldiers.

The initiation of an investigation is as simple as going to the office of the EO or SHARP NCO and telling him they want to file a complaint. The official guidance is for the NCO to advise the soldier to act at the lowest level and try to work things out. But if the soldier pushes for further action, statements are taken, and nearly always, an investigation occurs. When an investigation is opened, accused soldiers are given a “flag.” They lose options and opportunities. Soldiers can’t move duty stations, be promoted, or receive any awards. All this action happens when the investigation is initiated, not when the soldier is found guilty of wrongdoing. To put a fine point on it, they are punished based on another soldier’s word, not on any facts.

The Army has regulations about how to handle investigations. An “unbiased” Investigating Officer (IO) is assigned to investigate what happened and make a recommendation. More on that later. Someone who files the complaint can make any accusation they want. The investigator is charged with proving or disproving these accusations. The IO is not a trained investigator, but generally any officer who has the time to take on another task, regardless of their abilities or background.

A soldier could claim, “Sergeant Doe told me to perform a sexual act on part of his sexual anatomy.” On it’s face, that sounds horrible. But if asked what exactly the sergeant said, the soldier might respond, “he told me to kiss his ass.”

Of course, this is a ridiculous thing to spend time and energy investigating, but the IO has to follow the regulations. It’s even likely the sergeant will be flagged and eventually receive some form of punishment. In many “she said, he said” situations, there is no evidence. Anecdotally, these accusations stick in many cases. A soldier who is falsely accused, by definition, can’t disprove a negative. Common sense goes out the window. Even the slightest corroboration by another soldier is seen as definitive proof of guilt even if multiple other witnesses dispute the facts. There are no protections against accuser and witness collusion. Popularity contests are alive and well in the Army. Make an accusation, have a friend support your statement, and ruin a career. These are not hypothetical situations, either. There are other real-world instances that are just as ridiculous.

A chaplain attending a career course lost credit for the six-month class because he was accused of making racial comments. At the end of the investigation, he was cleared of any racism but found to be a “bully.” Parts of the accuser’s sworn statements were shown to be demonstrably false, disputed by multiple other students. Supporting witnesses were friends of the accused. Context was ignored. Witnesses for the accused were never questioned. Ultimately how the accuser “felt” was more important than what happened. The outcome was the chaplain being required to attend the same course for an additional six months (your tax dollars at work!), but also was unable to move to his duty station and held in limbo for over five months being unable to do his job.

Another soldier accused a drill sergeant of propositioning her. The drill sergeant was quickly discharged from the Army under the SHARP policy. Later, the accuser told another soldier that if a different sergeant wasn’t careful, she would get rid of them just like the first. The confidant drew out that the accusing soldier was never harassed or assaulted. The truth was reported but the damage was done. The accuser was discharged. The NCO was not reinstated, a 17-year career lost to a lie. 

Perhaps the biggest flaw in the Army’s investigation process is that at no point is the accused given the opportunity to face the accuser. They are generally separated and given no-contact orders. Accused solders are told there has been a complaint filed against them, but not what the complaint was, or who the accuser was. The accused are flagged and kept in the dark.

When the accused are questioned, if Fifth Amendment rights are exercised, they continue in the dark. They aren’t told what the accusations are before they are required to sign a document waiving the right to silence or to obtain legal assistance. Without knowing the accusations, or what the questions might be, the investigator can only go by the information from the accuser and, if there are any, witnesses. Context gets muddled, if questioned at all. Anchoring bias, in which an individual is overly influenced by the first piece of information heard, becomes a real threat to fairness and justice. Commanders, who ultimately make the decision regarding guilt or innocence, overly rely on the IO recommendation. The don’t speak to the accused until they have already decided the outcome and punishment.

Until the Army takes measures to provide fair investigations, it will continue to punish soldiers over minor or even nonexistent actions. When an investigator has similar life experiences as the accuser or accused, affinity bias can easily raise its head. Every effort should be made to screen investigators to avoid bias or the appearance thereof. 

The Army needs to change its practices. It needs to pick better investigators and train them. It needs to provide more information, including the nature of accusations, and who is making the accusation, to the accused. If protection or no contact orders are required, so be it. “Administrative punishment,” such as flagging, should be delayed until a soldier is found guilty of wrongdoing.

Until then, soldiers will continue to be found guilty and punished, unless they can prove their innocence. 

Image: Robert Couse-Baker

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