The Military’s Rough Justice on Sexual Assault
By Robert Draper | NY Times Magazine
Col. Don Christensen, the chief prosecutor of the United States Air Force, sat in economy class on a flight to Venice and studied the folder of the sexual-assault case that would ultimately end his career. It was August 2012, and he was en route to Aviano Air Base to try a court-martial. Looking over the case, he could see why the judge advocate general, or JAG, at the base had requested him. Christensen had prosecuted more sexual-assault courts-martial than any other lawyer in the Air Force, and this case called for someone with experience. There would most likely be generals testifying. The accused himself was a senior officer. Even Christensen had seldom handled cases involving men of high rank. There was a simple reason for this: Victims were reluctant to report such officers, who enjoyed their own set of rules in the military justice system.
The officer in question was Lt. Col. James Wilkerson, Aviano’s inspector general and a highly regarded F-16 fighter pilot. Five months before, following a U.S.O. concert at the base, Wilkerson, who was 43, and his wife, Beth, hosted a small party at their house. One guest, a 48-year-old civilian named Kim Hanks, was stranded without a ride home. She accepted the Wilkersons’ offer to stay in their guest bedroom. According to Hanks, she was dead asleep at 3 in the morning when she felt a sudden discomfort. Wilkerson was in bed with her, pawing at her body, digitally penetrating her. She was struggling with him when someone appeared in the doorway. It was Beth Wilkerson. “Get the hell out of my house,” the wife told the guest. Hanks scrambled out of the house and into the darkness without her shoes.
Thumbing through the folder’s contents, Christensen reviewed Hanks’s written statement. There didn’t appear to be anything obvious that would lead him to question her integrity. A physician assistant at the base, she had met the Wilkersons only that evening and had no reason to be defaming the pilot. Christensen found her credible and suspected that Wilkerson and his wife had not told investigators the truth about what happened that night.
The prosecutor studied the transcript of the pilot’s videotaped interview with Air Force investigators, in which he insisted he never left his own bedroom. The prosecutor also had the results of Wilkerson’s polygraph, which he failed. As with most sexual assaults, there was no physical evidence to buttress the case against Wilkerson. Unlike most such cases, however, there was a witness: Wilkerson’s wife. Christensen read the statement Beth gave to the investigators. He knew that she would be the key to the case. After all, she had only one reason to be untruthful: to cover up her husband’s guilt.
Christensen was 51, very tall and bald, an intimidating presence with a raspy voice. But he possessed a shy, boyish smile and a soft handshake that suggested a self-consciousness about his own strength. He was a sixth-generation military man; his great-great-grandfather survived the Battle of the Little Bighorn. In 1991, Christensen began his own military career as a lawyer at Ellsworth Air Force Base in South Dakota, 30 miles from where he grew up on a dairy farm. Though strippers no longer entertained at the officers’ club — as had been the case when Christensen’s father served at Ellsworth — at the time Christensen began there, it was still legal in the military to rape your wife. That year, 1991, was also when dozens of women reported that they were sexually assaulted by more than 100 Marines and Navy men at the Tailhook Symposium in Las Vegas, but the airmen at Ellsworth ridiculed the allegations as a tale trumped up by a bunch of female complainers.
Christensen’s early experience in a military courtroom was primarily as a defense attorney, with most of his early cases involving drug possession or use. During that time, he also represented nine men accused of rape. He won acquittals for six of them — the other three cases were thrown out before trial. Christensen developed an expertise in unraveling a victim’s testimony by, among other things, questioning her demeanor before and after the assault. He kept to himself how distasteful he found these moments — how he imagined taking the women aside after the whole thing was over and whispering, I believe you.
But his obligation was to his clients, and so he did what professional ethics demanded of him. The Air Force’s prosecutors and judges were inexperienced — moving on to other areas of the law after a few years — and seldom objected to Christensen’s line of questioning. The jury members, usually men of senior rank, had little sense of the counterintuitive behavior that victims often display. How she might go back to the house where a man attacked her to retrieve her sunglasses, so that he could not hold onto something of hers. How she might still talk to her attacker on the base, even with a smile, so as not to damage her military career. How her heart rate might have been normal during the medical examination following the assault, because, well, the body sometimes behaves strangely. Consistently he exploited the jurors’ ignorance on such matters to win acquittals of men he often suspected of being sexual predators.
Word began to spread: If you were caught assaulting a woman, your best hope was to request Don Christensen as your defense counsel. After one not-guilty verdict, the defendant, a huge man, wrapped Christensen in a bear hug and lifted the 6-foot-3 lawyer off the ground. Another soldier he set free vowed on the spot that he would be sending Christensen a Christmas card every year. The lawyer preferred to view his courtroom victories as testaments to his technical and persuasive skills rather than as possible miscarriages of justice — though his wife, Debbie, would tweak his conscience by asking: “Good for you. But what about her?”
Christensen often dwelled on the same question, and when the opportunity came in 2000 to switch sides, he took it. As a prosecutor, at Ahmed Al Jaber Air Base in Kuwait, Christensen immediately felt a weight on his conscience slip away. Though his new job would include court-martialing thieves, drug dealers and murderers, he became especially drawn to cases involving men who had forced themselves on women (and occasionally men) they usually outranked without fear of retribution. Christensen proved to be an empathetic advocate for the women he once sought to defeat. “You have to gain the trust of the victim in order for them to be comfortable telling you the facts of the case and retelling them on the stand,” an Air Force lawyer who has worked with Christensen (and insisted he not be identified, for fear that it might jeopardize his career) told me. “Any lawyer can know the forensics. What you can’t get out of a book is how you interact with a victim. I learned by watching how he treated them.”
Over the next 12 years, Christensen personally tried roughly 40 sexual-assault cases and supervised the prosecution of another 300. His decision to focus on sex crimes was unconventional in the military. A JAG was expected to be a generalist — to learn about environmental and labor law, about contracts and medical malpractice claims — and to spend only a few years trying cases. But Christensen liked the challenge of helping victims who had no one else in their corner. He knew the base commanders often did not have their best interests at heart. Instead commanders worried that a court-martial could lead to the loss of a prized fighter pilot. It could create turmoil at the base and produce a blemish on their own records. These pressures, Christensen had come to learn, all conspired to upset the scales of justice. Time after time, he witnessed commanders demonstrating their support for the accused by sitting behind him in the courtroom; in one case, after a pilot was found not guilty of rape, the commander leapt from his perch and yelled, “Yeah!”
Commanders selected the jury, which sometimes issued sentences far lighter than those meted out in civilian courtrooms. He saw one commander withdraw an airtight rape case days before trial, without explanation. He saw another commander testify at sentencing that the noncommissioned officer who had just been convicted of sexually molesting his daughter, a 13-year-old with a developmental disability, was nonetheless of great value to the unit and should therefore be retained. The judge granted his request.
And now Don Christensen would be trying to persuade a jury that a popular lieutenant colonel had sexually assaulted a houseguest and that his wife was covering for him. Still, the prosecutor was confident. When it came down to it, someone had to be lying, and he believed he could show that it wasn’t Kim Hanks.
After arriving in Italy the next morning, Christensen met with Hanks at the legal office in Aviano. She was calm and poised. She had reported the crime immediately and would be satisfied to see Wilkerson dishonorably discharged from the Air Force. Because Hanks was a civilian — as fully half of all victims of military sexual assaults are — Christensen explained how the military legal process worked. The case had already been referred for prosecution by Craig Franklin, a three-star general stationed at Ramstein Air Base in Germany who was the so-called convening authority over judicial matters at Aviano. In a couple of days, there would be a pretrial, called an Article 32 hearing, in which Hanks and others would testify and Christensen would make the case to the investigating officer that there was sufficient evidence to warrant a court-martial.
Assuming the investigating officer and then General Franklin concurred, the case would go to trial. At the court-martial, Colonel Wilkerson would be present with his military counsel and a civilian defense lawyer, if he had the money (which he did). Hanks, who did not hire a civilian lawyer, was not entitled to military counsel — Christensen represented the government, not Hanks, and could not offer her legal advice. The jury members would be ranking officers selected by General Franklin. The court-martial itself would proceed more or less as a civilian trial would, but with two exceptions. First, the jurors were free to ask questions of the witnesses. And second, only two-thirds of their votes were needed for a conviction.
Christensen and his two deputies filed into the Aviano courtroom on Oct. 29, 2012, to begin their case. It was easy for him to pick out Wilkerson’s supporters. The aviators stood in the back, arms folded across their chests, glowering at the prosecutors and the victim.
Christensen proceeded through a litany of witnesses: other guests at Wilkerson’s house that night; individuals Hanks had called to try to get a ride home; and Hanks herself. After two days, the prosecutor rested his case. The defense then called Beth Wilkerson to the stand. She testified that her husband remained in his bed throughout that night. Two aspects of her testimony surprised Christensen. Previously the pilot’s wife said that she had thrown out Kim Hanks after being awakened by Hanks’s loud cellphone conversation. Her new story, created after Christensen handed over phone records showing no such call had been made, was that she had been awakened by Hanks’s pacing noisily around the room.
Additionally, she originally told investigators that Hanks was very drunk that evening — which would mean that the pilot’s wife, known for her charitable spirit, had thrown an intoxicated woman out into the streets in the dead of night. Now her testimony was that the houseguest was sober. Christensen knew then that he was going to win the case.
During cross-examination, he asked Beth Wilkerson whether she had changed her story about Hanks’s condition that evening. Yes, she acknowledged. Had she also changed her story about what sound compelled her to go into the guest bedroom? Yes, she said. Christensen led her through several other instances in which the wife’s testimony was inconsistent with either her previous statements or those of her husband. The witness began to slouch in a posture of defeat, according to several people who were in the courtroom. The prosecutor concluded his 45-minute interrogation by standing over the pilot’s wife and asking, “Do you know of any reason Kim Hanks would have to falsely accuse your husband of having put his finger in her vagina?” Beth Wilkerson responded: “I don’t know.”
After three and a half hours of deliberations, the jury found Wilkerson guilty and sentenced him to a dishonorable discharge and a year’s imprisonment. Christensen saw the relief on Hanks’s face, even as groans of dismay pervaded the courtroom. This was not the place for the prosecution team to be celebrating. Christensen immediately ushered his deputies out of the courtroom.
Wilkerson was sent to jail in Mannheim, Germany, and Christensen returned to his family in Virginia. Over the next three months, the prosecutor began work on other cases while, unknown to him, dozens of letters — many from high-ranking officers — poured into the office of General Franklin, not only attesting to Wilkerson’s character but also claiming that Christensen had suppressed key evidence and that Hanks was a liar. On the afternoon of Feb. 26, 2013, Christensen was returning from lunch with a deputy at Andrews Air Force Base when an email appeared on his BlackBerry. It took him a moment to comprehend what he was reading. General Franklin, the commander stationed at Ramstein Air Base in Germany, had overturned the verdict: Wilkerson was to be released from prison and reinstated at full rank.
Christensen was stunned. He knew that the military justice system allowed Wilkerson to request clemency from Franklin, the convening authority. He’d seen cases in which sentences were reduced or benefits reinstated. And he knew that under Article 60 of the Uniform Code of Military Justice, the convening authority even had the power to dismiss the sentence entirely. But he had never heard of that happening. It hadn’t occurred to him that a commander might simply ignore a jury’s verdict. But Franklin did. Amid Christensen’s astonishment, one thought took shape: The general’s brazenly autocratic decision would not pass unnoticed in Washington.
It took a day before the legal office at Aviano could locate Hanks and get her on the phone with Christensen. The normally composed woman sobbed as he delivered the bad news.
“Kim,” he grimly told her, “I have no explanation. The only thing I can tell you is that you’re about to become an agent for change. This will never happen again.”
A month later, the prosecutor met with Defense Secretary Chuck Hagel at Hagel’s request. At that meeting, Christensen recommended that Article 60 be modified so that commanders could no longer overturn jury verdicts. Hagel — who recently announced that he was stepping down as Defense chief — urged Congress to do so, and a measure was signed into law by President Obama last December. (Wilkerson was subsequently forced to retire from the Air Force at reduced rank after another investigation revealed that years before, he had a child with another woman.) Several other reforms passed as well during that time.
Those who accuse someone of a sex crime would be given their own military lawyers, known as special victims counsels. Accusers could immediately request a transfer from the base after reporting a sexual assault. Convicted rapists would be either dismissed or dishonorably discharged from the military.
The looming question today is whether these changes have actually reduced the number of sexual assaults, encouraged victims to come forward and ensured justice when they did. In December the Pentagon will release to the president and Congress the 2014 gender-relations report — a biennial in-depth and anonymous survey that is supposed to capture true numbers of sexual assaults.
Military officials hope it will reflect significant improvement resulting from last year’s reforms. But several vocal skeptics on Capitol Hill doubt that these measures will prove sufficient. Many of these lawmakers are women — Representatives Niki Tsongas and Jackie Speier and Senators Kirsten Gillibrand, Claire McCaskill and Barbara Boxer — who became engaged with the issue after viewing “The Invisible War,” a revealing 2012 documentary on the subject, as well as having numerous private meetings with women and men in uniform who had been sexually assaulted. The stories the military officers have told tend to feature a common element — namely the favoritism that commanders exhibit toward the accused and a lack of sympathy toward those who report such offenses.
For this reason, Senator Gillibrand has led a legislative effort to remove prosecutorial authority from the military in sexual-assault cases and place it instead with an independent body. After consulting with Christensen, among many others, she wrote the Military Justice Improvement Act earlier this year; it came within five votes of passage in the Senate in March. Gillibrand expects that the new Pentagon statistics will persuade more senators to reconsider their trust in the military’s ability to police itself.
“For the past 25 years, going back to when Dick Cheney was defense secretary, we’ve had the military telling us that there’s zero tolerance for sexual assault,” Gillibrand said in October in her Washington office. “And all we’ve seen is zero accountability.” Gillibrand pointed out that the last gender-relations survey from 2012 indicated that there had been 26,000 cases of sexual assault, rapes and unwanted sexual contact in a year’s time. Only 3,300 of them were actually reported, roughly one in eight. “And so when you speak to the survivors, they’ll tell you they won’t report because they don’t believe the chain of command will do anything or they fear witness retaliation. Of the brave souls that did report these crimes, 62 percent were retaliated against. So you have a culture where rapists go free, there’s no accountability for sexual assault, there’s a climate where everything is shoved under the rug and people are actually punished for reporting sexual assault.”
Proposals like Gillibrand’s bill are viewed by military officials as intolerable, a subjugation of a commander’s authority, which they say would erode order and discipline within the ranks. The Pentagon has countered with an onslaught of new programs designed to lend comfort to victims, to discourage predation, to keep commanders better informed and, above all, to prove to lawmakers that the military understands there is a problem. In May, Gen. James F. Amos of the Marine Corps vowed to a House subcommittee, “I’m determined to change our culture.” Earlier this year, Army Secretary John M. McHugh told an audience of military-sexual-assault experts that they were “changing the culture.” Not long after, the director of the Pentagon’s sexual-assault-prevention efforts known as Sapro, Maj. Gen. Gary Patton, also promised new programs that “will make a difference and change the culture.”
When I visited the prevention and medical facilities at Fort Bragg a few months ago, a senior officer involved in the sexual-assault-reform effort also assured me that things were different. “There is a change going on, quality and quantity — and soldiers are getting it,” the officer said. Fort Bragg happened to be the same Army base where Brig. Gen. Jeffrey Sinclair underwent a much-publicized court-martial earlier this year. Sinclair acknowledged a three-year adulterous relationship with a female subordinate but denied her claims that he twice sexually assaulted her. The general also confessed to using his superior rank to direct two other young female officers to furnish him with naked photographs. Ultimately Sinclair pleaded to lesser offenses and was allowed to retire at reduced rank. During roughly the same period, Defense Secretary Hagel ordered a systemwide “stand-down day” devoted to sexual-assault-prevention seminars. I later spoke with a seminar attendee, a female lieutenant who told me she was sexually assaulted on an Army base two years earlier.
“The presenters asked us if we felt things were improving,” she said. “We all laughed. Sinclair was happening then. He proved that it was a joke.”
Critics in Congress are skeptical too. In May 2013, two months after General Franklin dismissed Wilkerson’s verdict, Representative Jackie Speier complained to Hagel about a Facebook page apparently put up by Marines called “F’N Wook,” depicting women being tied up, beaten and shot. The Marines assured Speier that the situation was being investigated but would not say whether anyone had been disciplined. In September, an Army drill sergeant pleaded guilty to sexually abusing several female trainees at Fort Leonard Wood, the same base where the Army was teaching its criminal investigators the latest techniques in identifying sexual predators. Lawmakers like Senators Gillibrand and McCaskill expressed particular alarm at the allegation made by one trainee, who testified at the court-martial that the women were warned that they might not graduate if they reported any assaults. The Army responded that it had investigated the matter but would not disclose its findings.
Lack of transparency is not the only reason that the military’s promises of change have been hard to accept. It’s difficult to be sanguine when the supposed enforcers of change have themselves exhibited bad conduct. In June, the Army’s top sex-crimes prosecutor, Lt. Col. Jay Morse, received a reprimand after molesting a female officer at a sexual-assault-prevention conference. That same month, the Air Force’s sexual-assault-prevention director, Lt. Col. Jeffrey Krusinski, was also reprimanded for drunkenly fondling a woman in a bar against her will. When the civilian authorities declined to bring charges against Krusinski, Don Christensen strongly recommended to his superiors that he be court-martialed. The convening authority in the matter elected to keep Krusinski in the Air Force.
Christensen comes from a long line of blunt-talking men, going back to his great-great-grandfather, who openly accused some officers of having been drunk on the battlefield at Little Bighorn. But over the years, not everyone has appreciated such candor. One superior who admired Christensen would warn him, “Don, when I do this” — dragging a finger across his throat — “you shut up.” Though younger lawyers have revered him for his acumen and frankness, those above him have been less appreciative of his direct assessments. Christensen has continued to make them anyway.
In February, on a flight from Frankfurt to Baltimore, Christensen noticed a familiar face on the airplane. It was Gen. Craig Franklin, the convening authority in the Wilkerson case. After his verdict reversal caused an uproar on Capitol Hill, Franklin was forced to retire as a two-star general rather than a three-star general, and he was now on his way home. Upon clearing customs in the airport, Christensen approached Franklin and asked if he could have a word with him.
“You blew it,” he told the former commander. “Wilkerson was guilty. Everything you wrote in your memo was wrong. I would have told you — you should have called me.” Christensen added that the victim, Kim Hanks, had been needlessly retraumatized by the ordeal.
Franklin, noticeably startled by this outburst, replied that the outcome had not been rosy for him either. “I lost a star,” he said.
Christensen left the airport and gave no thought to whether it had been imprudent to scold a general. Nor had he reflected on how his now-frequent visits to the Hill to discuss his views with legislators and their staff would be viewed by his superiors. And though he was surprised and offended to learn some months before that Gen. Philip M. Breedlove, the commander of the United States Air Forces in Europe, had condemned the prosecution of Wilkerson while addressing several hundred officers, Christensen did not worry that his career was in jeopardy.
But a month after his run-in with Franklin, Christensen says he received his annual performance review and found that he was downgraded for the first time. His superiors informed him that he would soon be assigned to be a judge on the appellate court. Christensen nearly laughed when he learned of this “promotion.” The appellate court was widely understood to be the Air Force’s dumping ground for JAG misfits.
The veteran prosecutor had no intention of submitting to such a fate. As he thought about what might come next, he threw himself into one last sexual-assault case — involving an incident near Ellsworth, the Air Force Base where Christensen began his military career.
On Friday, April 12, 2013, about two dozen male officers of the 37th Bomb Squadron gathered at a strip club just west of the base. After spending less than an hour there, they took a bus to Sally O’Malley’s and then to Joe’s Place. At Joe’s, an officer named Kris — the only woman in a squadron of 70 aviators — caught up with them. She was a major, a lean and athletic B-1 weapon-systems officer in her mid-30s who had flown nearly 2,000 hours in combat zones, more than anyone else in the 37th. Often the others referred to Kris (who requested that her nickname be used to protect her privacy) as “one of the guys,” which she took as a point of pride, and it was only later that she would wonder whether, in simply rolling with the daily macho crudeness in the Air Force, she herself had been part of the problem.
Kris was just coming in that night from a nearly monthlong assignment at another air base. Her squadron greeted the major with high-fives and hugs, she said, and told her that she had some catching up to do. She drank two shots of tequila and put on a pub crawl T-shirt like the others were wearing. Then they left for another bar, and then another. It was getting close to 2 in the morning when the bus headed back to the base, but four officers — Kris and three men — decided to close down one last bar. She was quite drunk by the time they hailed a cab. While she slept in the taxi, the other three determined that they had enough money among them for only two stops. One airman, Capt. David Brooks, volunteered to take her back to his place and drive her home. Kris had flown sorties with him, and they were professionally cordial, though they rarely socialized. Without Kris noticing, Brooks snatched her iPhone and sent some crude texts to a squadron buddy who had left earlier, including one that used symbols to apparently replicate an erect penis.
According to Kris, she had not been inside Brooks’s apartment for more than a few minutes when he suddenly pushed her onto the couch. Stunned, she jumped back up, then promptly became sick. The reaction took Brooks aback. He cleaned up the mess while she staggered to the couch and fell asleep. Perhaps two hours later, she woke up, feeling not quite right. Her pants were undone. She felt hands groping inside her underwear, touching her vagina and her anus. It took her a while to understand what was happening. She could feel someone breathing heavily into her hair. The groping continued. Kris, now awake, reached down and pulled up her pants. Brooks stumbled away from the couch and retreated to his bedroom.
For hours she was alone. She had no cab money and didn’t know what address to give a dispatcher anyway. When Brooks finally emerged, late in the afternoon, she asked him to take her home. “See you at work,” she found herself saying as she got out of his car.
For weeks, Kris tried to get over it. She kept seeing Brooks at the unit. It seemed to her as if he were everywhere, bossing people around, strutting about as if nothing had changed, as if what he tried to do to her was a triviality, something he could repeat whenever he so chose and she would simply have to accept it. She could not. Rage consumed her.
Six weeks after the assault, she filed a report. The base investigators interviewed her and had her write a statement about what occurred. Then they asked Kris to call Brooks, and they listened in while she confronted him for the first time about what he did to her that night when she was passed out. Brooks immediately apologized but said that he had been drunk himself and had no memory of doing such a thing. The investigators filed their report, which eventually made its way up to the Government Trial and Appellate Counsel Division at Andrews Air Force Base near Washington and landed on the desk of the division chief, Don Christensen, nearly a year after the incident.
What Kris encountered since reporting the assault was the same kind of cold-shouldered skepticism on the part of her commander that Christensen had seen in a vast majority of sexual-assault cases — behavior that was supposed to have changed with the military’s recent vows to support those who reported sex crimes. After Kris reported Brooks, the commander, Lt. Col. Stuart Newberry, who also was there during the night of drinking, issued a no-contact order specifying that Brooks stay at least 300 feet away from Kris — a standard procedure, except that the commander also issued the same order to her, which was something Christensen had never seen happen. Newberry agreed to move Brooks out of the squadron office where Kris worked, then decreed that out of fairness, Kris would have to be reassigned as well — though he backed down when she tearfully argued that this would be universally interpreted as punishment for having said that she had been assaulted. Still Brooks continued to show up in the office. “I need him here to do his job,” Kris said the commander told her. More than once Newberry told Kris that, just as in corporate America, his hands were tied. “If this were IBM, they wouldn’t be able to move him,” he said. When Kris told Christensen what Newberry said, he told her that Newberry’s analogy was wrong: It was hard to imagine a modern-day company in which someone accused of sexual assault would be permitted to continue to work alongside the woman he was said to have attacked.
Newberry, she said, also told her, “It’s illogical for you to think that there won’t be negative consequences to your reporting.” What the commander had not done was warn the rest of the 37th Bomb Squadron that he would not tolerate “negative consequences” for her. Instead, during one meeting, Colonel Newberry volunteered that throughout his experience in the Air Force, he knew of only one report of sexual assault, and it turned out to be false. (Newberry declined to comment for this article.) From what Christensen had seen over the years, this behavior was depressingly common. As he put it, “Commanders would much rather believe they have a woman who’s lying and crying rape than that there’s a sex offender in their midst.”
The judicial proceedings at Ellsworth proved routine in ways both satisfying and dispiriting for Christensen. He exploited holes in Brooks’s story. Kris was persuasive. It took the jury less than two hours to find that Brooks sexually assaulted her. He was sentenced to 45 days in jail, along with forfeiture of two months’ pay and dismissal from the Air Force. The case would, Christensen knew, be seen as a success story for the military — as proof that the system worked. A sexual-assault victim had displayed the confidence to come forward. During the court-martial, she had a special victims counsel by her side. Her attacker was tried and found guilty.
But Christensen knew that the story did not end for the victim even after a guilty verdict. In August he returned to South Dakota to attend a discharge-board hearing in which Brooks petitioned to be reinstated into the Air Force. Several officers came to testify on his behalf. And though Colonel Newberry had recently left the unit to accept a one-year fellowship at Harvard, he testified by speakerphone on behalf of Brooks. Christensen’s disgust was evident. The prosecutor reminded the board that Brooks was now a felon who had lost his security clearance. Did the Air Force intend to keep him around as a mascot?
The board sided with Christensen and issued Brooks an other-than-honorable discharge — the maximum it could assign, because the court-martial jury declined to issue the more punitive dishonorable discharge.
Christensen stayed behind with Kris. She had just returned from deployment in Qatar, but her eyes conveyed a weariness deeper than jet lag. While Kris was gone, the wing commander visited Brooks in jail, as had several of his squadron buddies — a show of support that the victim herself had not once received. Kris was told that there had been an “all-operators” meeting in her absence, in which the operations commander informed the squadron that Brooks was found guilty and sentenced to jail time. But, the commander added, there were two sides to every story, and people could continue to believe whatever they wanted, regardless of the jury’s verdict.
More important, Kris told Christensen that after years of glowing performance evaluations, she had recently been downgraded — Newberry wrote that she needed to keep her “emotions in check.” There was nothing Christensen could think to say. He had done his job. But this was not justice. As he would later remark: “When the commander is so obviously supporting the accused over the victim, it sends a clear message that it’s O.K. not to believe her and to shun her. And so why would a woman come forward, knowing what Kris has gone through?”
That question invites a related question: Is there a remedy, legislative or otherwise, for an ingrained culture that reflexively punishes victims when they report sexual assaults? When I asked Senator Gillibrand about this a few weeks ago, the author of the Military Justice Improvement Act acknowledged that removing prosecutorial authority from the chain of command “isn’t a silver bullet.” She added: “It’s just a step in the right direction. It’s the kind of tool you need to help people have faith in the system.”
Efforts like Gillibrand’s bill to reform the military judicial system, and the resistance by the military to those efforts, have produced sharply differing reactions in Congress. One group of senators, consisting of pro-defense stalwarts like Senators John McCain, Lindsey Graham and Carl Levin, the Armed Services Committee chairman, responds to each sex-related scandal with momentary dismay followed by strong words of support for the Pentagon’s efforts to self-police. At the opposite end are hard-charging reformists like Gillibrand and Speier, who do not even pretend to trust the military on this issue; as Speier (who has sponsored a bill in the House similar to Gillibrand’s) puts it, “The Pentagon brass is really good at coming up to the Hill and saying, ‘Zero tolerance,’ which is completely meaningless when the conduct continues.”
In the middle are two other distinct factions. Senator Claire McCaskill, an early denouncer of General Franklin’s decision to overturn the Wilkerson verdict — but also a crafty Democratic survivor of electoral trench warfare in reddish Missouri — has staked out the moderate, cautiously optimistic position that, thanks to Congress’s vigilant oversight in the past two years, the once-intransigent military is now chastened and reform is already occurring. She told me that the top levels of military leadership understand this. “Americans want to be proud of their military but can’t be when we allow these crimes to go unpunished,” she said. “I think they’ve come to the realization that they have to go after this a different way.”
McCaskill has emerged as the most vocal critic of Gillibrand’s approach to reform. Her alternative bill, the 2014 Victims Protection Act, keeps prosecutorial authority within the chain of command but establishes various review processes. It passed unanimously in the Senate just after the defeat of Gillibrand’s bill and was subsequently sent over to the House in March, where no action has yet been taken.
Above all, McCaskill and military leaders contend that commanders require such prosecutorial authority, both to maintain good order and discipline and to make sure that accusers will have their day in court, even in a losing cause. “Prosecutors are more interested in getting convictions than in cleaning house,” says McCaskill, a former county prosecutor.
That position is rejected by the fourth camp, led by the Republican senators Rand Paul and Ted Cruz, who are more trusting of the military than Gillibrand and Speier but less confident about the reforms in place than McCaskill. Cruz told me that he assumed the military was acting in good faith. “But what they’re doing hasn’t been working, and we need to take more serious steps. I approach this from the perspective of a father who has two young daughters — and I ask myself, When they come of age to join the military, what rule would I want in place to protect them from acts of violence from their fellow soldiers?”
Cruz is a sponsor of Gillibrand’s bill — one of the very few issues that the Texas conservative and the New York liberal agree on — and said that many of his colleagues who voted against it in March did so because they wanted to first see if the most recent reforms would have a significant impact. “I think all of us will be looking closely at the new Pentagon data to see what it says. But assuming the problem persists, several senators have expressed a willingness to reconsider their vote.”
Thus far the White House has appeared to be deferring to the Pentagon. When I spoke in August with Lynn Rosenthal, the White House adviser on violence against women who has been one of the president’s point people on this issue, her observations hewed closely to the Defense Department’s three main talking points. She said it was “very positive” that in 2013, more women reported being sexually assaulted because it meant that victims are increasingly trusting the judicial process. But because the military does the gender-relations survey only every other year, there is no data on the total number of assaults last year, just on the number of those reported. There is not yet any evidence that the actual rate of reporting has changed for the better. She extolled special victims counsels as “one of those landmark reforms” that “is really going to change things” — despite the fact that they have very limited standing in court proceedings, according to three victims counsels with whom I spoke. And Rosenthal told me that from speaking with personnel throughout the armed forces, “we certainly hear that the climate has really changed and that the services have really taken this on.” The White House adviser might have come to a different conclusion had she learned how a victim fared in the climate at Ellsworth Air Force Base.
On Sept. 26, a month after Brooks’s discharge hearing, Christensen said farewell to the Air Force. That evening, several dozen protégés attended a reception for the veteran prosecutor, and a few of them shed tears as Christensen treated them to a slide show that included images of his forefathers in the military. “I come from a long line of troublemakers,” he told his colleagues.
The following Monday, Christensen reported to his new job. He is now the president of Protect Our Defenders, a three-year-old nonprofit organization that has quickly become the nation’s pre-eminent advocacy group on behalf of victims of sexual assault in the military, with an advisory board that includes Wesley Clark and several other retired generals, in addition to Magic Johnson, Sigourney Weaver and Garry Trudeau. He will be recruiting pro bono lawyers for victims, helping to write legislation and serving as the chief critic of the system in which he worked for the past 23 years.
When I met with Kris three weeks later, she told me that she thought the loss of Christensen as a prosecutor would be felt among the women in the military. “Meeting Colonel Christensen was my first experience seeing someone who outranked me and who was actually saying, ‘We don’t tolerate this stuff.' ” As we sat over coffee at a diner in Rapid City, S.D., Kris said she was still struggling in her unit. “I hate being called ‘the accuser,' ” Kris said. “That’s what they called Satan in the Bible. Lieutenant Colonel Newberry told me, ‘You’ve accused Brooks of a very serious crime.’ I said: ‘I didn’t accuse. I reported a very serious crime. This is me coming forward, telling you: You have a criminal working for you, and he does not belong in this squadron. He does not belong in the Air Force.' ”
It was October, two months after the conclusion of the major’s case. Capt. David Brooks was still at Ellsworth Air Force Base, awaiting the final approval of his discharge. Kris had seen him once, coming out of a building. His presence on the base no longer made her fearful the way it did in the months after she reported the assault. Still, that a convicted criminal was allowed to linger on Air Force property infuriated her. Kris, meanwhile, wondered whether the Pentagon would even become aware of what happened to her. As did thousands of servicemen and servicewomen, she received the biennial survey of sexual harassment and unwanted sexual contact. It was soliciting information only for sexual assaults that had taken place beginning September 2013, five months after Brooks attacked her. It had now become a literal truth that she did not count.
In the year since the assault, Kris had fallen into a kind of limbo. While most of her fellow aviators had been moved up to new positions, she was overlooked. She eventually requested a lateral move to another department to get away from her difficult situation. “I was put on a shelf,” she said, adding that she has been socially isolated. “Since this happened, no one in the squadron invites me to do anything. And I don’t think I ever will be invited.”
Her hurt was barely restrained as she continued in a jumble of thoughts: “They were my friends. We were family. It’s like parents with two kids — how do you choose? A parent can’t acknowledge that one of his kids did this. Doesn’t want to have a daughter who’s damaged goods. Doesn’t want to acknowledge a failure in the family. My having brought this up is less than optimal. But this is the way these things happen. It’s not going to be some stranger jumping out of the bushes. It’s going to be someone you know. And there won’t be witnesses and there won’t be DNA. But there’ll be a serious character flaw. And I’m the one who saw it. And I hate that this happened to me. I hate that it’s going to happen to other people.”
Kris, the only woman among 70 aviators in her squadron, was assaulted by another officer.
Credit Alec Soth/Magnum, for The New York Times
She mentioned that she had recently spoken to her new commander about being given a job in the base’s Sexual Assault Response Coordinator office. The commander, she said, said he would see what he could do. “I’d like to be able to help others,” she told me. “I’d like to be part of the changes.”
Kris remained hopeful, in spite of what happened to her, that reform could occur. For the first time in her life, she was following events in Congress. She told her story to Senator Gillibrand on the phone and expressed her support for the senator’s legislation. But she also clung to the belief that there was an innate goodness in the Air Force that validated her dedication to the service. The military had seen something in her, as a Southern girl recruited out of college, and more than a decade later, she still saw something in it. She loved flying those 12-hour sorties over the desert, wedged into uncomfortable B-1 seats alongside three men, feeding intelligence and providing support to the soldiers on the ground. When they spoke back to her, she could hear in their voices that they felt safe with her overhead. As the weapon-systems officer on her plane, she dropped so many bombs during one period that an aviator took to calling her Bombshell, which she knew was meant out of respect.
Just after the court-martial in April, she was deployed to Qatar for a couple of weeks. While at the base in al-Udeid, the wing commander held a briefing on sexual assault. As Colonel Newberry did the previous year, Gen. Roger Watkins placed a series of slides on a screen and read the required data word for word. But then he departed from the text. In a stern voice, the general told his troops that this matter was not a trivial one. “These little blue figures you see on the screen are more than little blue figures. They represent airmen working with us, every day. And sexual assault is not just blue on blue. It is fratricide.”
A crime against family. The words meant something to her. Whether they meant anything to her brothers — the young men in uniform sitting around her — she could not tell.
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