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Ruth Marcus: Military continues to blunder in sexual assault cases

WASHINGTON -- The latest, infuriating entry in the military's ham-handed handling of sexual assault involves a Catch-22 worthy of Joseph Heller.

Follow the "logic":

(1) The military acknowledges that most incidents of sexual assault are never reported to authorities. (If you wonder why, see the put-the-alleged-victim-on-trial proceedings just concluded involving the U.S. Naval Academy.)

(2) The military acknowledges that this underreporting includes the most serious forms of sexual assault, such as rape.

(3) The Department of Veterans Affairs acknowledges that such assaults can have consequences, such as post-traumatic stress disorder, that require treatment years later.

Now, the catch.

(4) The VA -- backed up in court by the Justice Department -- insists that, for purposes of determining eligibility for benefits, the failure to report sexual assault can be used as evidence that it did not occur.

In short, we know these incidents aren't reported, yet if you don't report, you're out of luck. Next case.

This appalling attitude came to light in a just-released opinion from the U.S. Court of Appeals for the Federal Circuit, which instructed the VA, in essence, to knock it off.

The ruling, written by Judge Timothy Dyk and joined by Judge Raymond Clevenger, involved two claims. One woman, identified only as A.Z., served from March 1973 to July 1974, receiving an honorable discharge after she became pregnant. In 2004, she was diagnosed with psychiatric problems, including PTSD, which she blamed on sexual and physical abuse by a superior officer who she claims raped her and fathered her child.

The VA rejected the claim because there was no evidence in the record of sexual assault. A.Z. submitted statements from three siblings, who said that in "about her fourth or fifth month of pregnancy [A.Z.] told us she had been sexually assaulted, verbally abused and beaten by Sgt. [J.H.]" and that their sister did not report the incidents to military authorities because she was scared and did not think she would be believed.

A.Z.'s request for reconsideration stated that "she did not report these incidents to the military legal authorities" because she "was a young girl, sexually assaulted, verbally abused and beaten by a superior [officer] and she was in fear of her life."

That request was denied, as was her appeal to the Board of Veterans' Claims. It said the siblings' testimony wasn't enough to overcome the absence of documentation because "none of these individuals ... claimed to witness any personal assault take place."

Seriously, that's what the VA thinks it takes, an eyewitness? Another layer of review, before the U.S. Court of Appeals for Veterans Claims, upheld the dismissal.

The second woman's claim met similar obstacles. A.Y., who served honorably from 1980 to 1983, was diagnosed with PTSD in 2002 and attributed the disability to a sexual assault by another soldier during military A.Y.'s service records also contain no mention of an assault. But her ex-husband submitted a statement asserting that she told him about it when they were serving together. A fellow soldier said that A.Y. told her about the assault the day after it occurred and subsequently "became despondent and discussed suicide." A roommate at her next duty assignment reported that A.Y. attempted suicide and was treated at a base hospital.

Again, not enough. "The statements you provided from your friends and family were insufficient to substantiate your claimed stressor, since none of them witnessed the incident, and only knew of the incident due to your statements alone," the VA's regional office concluded.

This is lunacy. I don't know whether these women were sexually assaulted, or whether the assaults resulted in PTSD, or whether they should receive benefits. I do know that the absence of (documentary) evidence is not evidence of absence.

As Dyk's opinion noted, "The secretary expects that many assaults will not have been reported to authorities, for reasons unrelated to the merits of the claim. Penalizing assault victims for that failure would hardly comport with a system" designed to emphasize fairness and based on "solicitude" for the veteran claiming injury.

Indeed, even the dissenting judge, Kimberly Moore, noted that "as a judge, a woman, and a human being, I am dubious about the weighing of the evidence and the fact findings of the VA in this case."

Not everyone who comes forward, years after an alleged event, is automatically entitled to benefits. But victims of sexual assault in the military are entitled to more benefit of the doubt than the government they served has seen fit to give them.

Ruth Marcus is a columnist for The Washington Post. Email, ruthmarcus@washpost.com.



By RUTH MARCUS