Justice Delayed or Denied: The National Guard Struggles with Handling Accusations of Sexual Assault and Harassment

A painting depicts the devastation caused by sexual assault amongst service members.
As part of the Joint Base San Antonio’s Sexual Assault Awareness and Prevention Summit at the Fort Sam Houston Community Center, a painting depicts the devastation caused by sexual assault amongst service members. (U.S. Army photo by Staff Sgt. Tomora Nance)

There wasn't one incident that pushed Spc. Jane Doe, two years removed from her service in the National Guard, to the Department of Veterans Affairs hospital in Richmond, Virginia.

Sitting in the lobby for hours while she sought help for suicidal thoughts, it was the years of blatant sexual harassment during her service that had pushed her, first out of the military and now to this crowded waiting room, mostly filled with older veterans.

She would leave the hospital without the help she needed, but with a $506 bill.

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In 2017, male soldiers at Fort Pickett, Virginia, gazed through a window into female showers until Doe alerted her commander. The leering soldiers weren't punished; instead, the women were instructed to cover the windows with black trash bags.

A male soldier sent Doe photos of his genitals, but she did not recognize the phone number.

Noncommissioned officers frequently made comments about her physique, ogling her body. One NCO loudly and proudly declared in front of other soldiers that he was going to make her a "sexual conquest." He was supposed to be her leader.

A junior soldier pressured her to engage in a sexual relationship, pressing Doe for more than an hour in a hotel parking lot to have an affair with him.

Doe raised this unwanted advance with the unit's chaplain. He was more concerned about why she had the man -- instead of a female soldier -- drop her off at her hotel, effectively blaming her for the incident.

For Doe, it was the final straw. She met with her acting commander in 2018, but was told there was little he could do. He never initiated a formal investigation, told her how to file a report or linked her with the Army's sexual assault or harassment resources -- all strict requirements per service regulations.

"He listened, which was good to have," she told Military.com. "But I really needed direction on what to do. He didn't tell me anything. I don't think a lack of care was the issue; it was likely a lack of understanding."

All of those instances of soldiers in her unit harassing her and pressuring her for sex were swept under the rug, until 2021, a year after she was honorably discharged for "hardship" reasons, and only because a senior officer in the Virginia Guard was notified of the pervasive harassment.

Doe's case is just one example of how sexual harassment and assault victims in the Army and Air Force National Guard have little recourse if their cases are ignored or mismanaged.

A convoluted system that has National Guard members working under federal rules -- and the Uniform Code of Military Justice -- some of the time, while other times being governed by state regulations has created a patchwork of laws complicating justice and confusing troops.

All too often, service members don't know where to turn for help or, when they do seek justice, delays upon delays mean that it could be years before accusations are acted upon.

California Democrat Rep. Jackie Speier, chairwoman of the House Armed Services Committee's personnel panel, during a hearing Jan. 19 on sex crimes in the Guard noted media reports of problems in the Florida, Minnesota, Pennsylvania, Vermont, Wisconsin and West Virginia National Guards involving "botched investigations and failure to report sex crimes to police."

"The National Guard is on notice. Sexual assault and harassment will not be tolerated. We pay your bills. We fund you. The game is over," Speier said.

When a National Guard member is the victim or alleged perpetrator of a crime, the case is referred to local law enforcement if the soldier or airman is not on federal, or Title 10, orders. In 2020, of 634 reports, just 67 occurred on federal orders, meaning that the U.S. Army or Air Force had jurisdiction to investigate only about 11% of the cases.

This means the remainder must be prosecuted by the states. Increasingly, this unique arrangement has placed the federal government and the National Guard at odds, with the state National Guards seemingly deciding what rules to follow on the fly, depending on the training event or mission.

SHARP, Stand-Down Day at Rose Barracks, Vilseck, Germany.
Sexual Harassment/Assault Response and Prevention, or SHARP, Stand-Down Day at Rose Barracks, Vilseck, Germany, April 18, 2019. (U.S. Army photo by Alain M. Polynice)

For example, some Republican governors refused to have their Guardsmen comply with COVID-19 vaccine mandates, defying the Pentagon, which pays Guard members to drill on weekends, even though they technically serve their governors on those typical drill days.

As the laws are currently written, when a sexual assault or other crime is committed by or against a Guard member on state orders, civilian law enforcement is notified in the jurisdiction where the crime was committed. Guard cases can be complex, with Guardsmen often deploying out of state or serving alongside the Guards of other states. If there is confusion as to who has jurisdiction over a sexual assault case, the states can consult the National Guard Bureau's Office of Complex Investigations, or OCI, an oversight body established in 2012 that can conduct an administrative investigation and make recommendations to states on how they should proceed in prosecuting a case.

Brig. Gen. Charles Walker, the office's director, said of the 175 cases he has personally reviewed, about half were substantiated by an OCI investigation, with even fewer resulting in courts-martial.

"If the state has a robust military justice system," Walker said in an interview, referring to the individual states' laws that govern their National Guards, "there have been a couple instances where our substantiated cases have led to court-martial. However, that is the exception and not the rule because most states do not have a code of justice robust enough to deal with some of the modern things that are going on in our force. The National Guard was never meant to be working as hard as we've been working over the last 40 years."

The Office of Complex Investigations also will not accept a case if it feels that local law enforcement has done a thorough investigation, with Walker describing the office as an "administrative fallback" in areas where jurisdiction is in dispute or local law enforcement doesn't take up a case.

And some cases, like Doe’s, aren’t even eligible for a review by OCI, which only investigates sexual assault cases and not harassment cases, and only when civilian authorities decline to press charges.

Spc. Jane Doe is a pseudonym, chosen to protect the service member’s identity, consistent with Military.com's policy not to identify victims of sexual assault or harassment without their consent.

Military.com reviewed text messages and emails saved over the years by Doe that showed a systemic trend of abuse in her National Guard unit. They also showed her leadership failing to intervene and not adhering to Army policy, including those that direct leaders to document incidents of sexual harassment and assault and guide victims to mental health and medical resources.

Where possible, Military.com confirmed the details that Doe described, while descriptions of other conversations are based on her account, supported by documents she filed with the National Guard.

Military.com also is withholding the name and position of the officer who spurred the investigation and backed up Doe's allegations, as disclosing the name of that officer could make identifying Doe easier. The names of all the men accused of harassing her are also being withheld to protect her safety.

Officials with the Virginia Guard told Military.com that it aggressively pursued an investigation into Jane Doe's case once allegations were made.

"The Virginia National Guard has a zero-tolerance policy for sexual harassment and sexual assault, and we will aggressively investigate allegations when complaints are made to the unit chain of command," Virginia Adjutant General Maj. Gen. Timothy Williams said in a statement issued to Military.com.

But Doe's experience with sexual harrassment colored nearly every moment of her National Guard experience.

One NCO told her that sexual harassment was just part of doing business as a woman in the National Guard.

"This feeling of fear, isolation and violation was pervasive in all of my exchanges during my time in service," she recalled.

Senior leaders never heard of her harassment outside of the immediate group of junior officers who commanded her company.

Leadership at the company level, however, never seemed to be reprimanded for failing to launch an investigation or give Doe resources. Officials didn’t tell her the results of the 2021 investigation, the findings of which were disclosed only after an inquiry from Military.com, which shared them with Doe.

"It was kept quiet. I was told to not go above the chain of command. Because of that, it was kept internal and never resolved. This is a procedural failing," she said.

Five soldiers were named in Doe's allegations. Only two of them have been disciplined. The other three had left the Guard in the years after Doe's harassment and months after she left the military.

Officials with the Virginia National Guard refused to disclose the names of the two soldiers punished, what their punishments were, or the identity of the investigating officer to "protect the privacy of all involved," Alfred Puryear, a spokesman, told Military.com.

Those two soldiers are still serving, although they have been disciplined.

The state's investigation substantiated three of the six harassment accusations made by Doe, meaning that investigators could confirm three while the other three were not verifiable.

However, after Military.com's inquiry into the matter in Virginia, the case will be reexamined by Maj. Gen. John Rhodes, commander of the 29th Infantry Division, according to Puryear. After Military.com's inquiry, the $506 bill that Doe had received when she sought help for suicidal thoughts also was swiftly zeroed out.

Sexual Assault Awareness and Prevention Month at Wheeler Army Airfield.
25th Combat Aviation Brigade holds a cake cutting ceremony at the Wings of Lightning Inn to kick off the annual Sexual Assault Awareness and Prevention Month at Wheeler Army Airfield, Hawaii on April 6, 2021. (U.S. Army photo by Sgt. Sarah D. Sangster)

At the federal level, the Defense Department's Independent Review Commission on Sexual Assault last year made several specific recommendations to the National Guard for improvements to ensure that units in the 54 states and territories efficiently and accurately handle sex crimes cases regardless of duty status, as well as for prevention programs, data collection and policies.

Despite commitments from the states to adhere to service policies, however, the Army National Guard chose not to participate in the Army's new efforts launched in October to combat sexual assault and harassment, a so-called "fusion directorate" campaign that gives victims means to report incidents outside of their chain of command. That revamp in policy was a reaction to the slaying of Spc. Vanessa Guillén and the consequent damning review of Fort Hood, Texas. The program is in its infancy, and it is unclear what ramifications the Guard might face for not being at the table during a critical early process or whether part-time troops will lose out on resources.

The lack of federal oversight and the Guard seemingly picking and choosing which DoD policies to follow have slowly drawn the ire of some lawmakers.

"The Guard's funding comes from the federal government, and there's no accountability," Speier told Military.com.

During the Jan.19 hearing chaired by Speier, other lawmakers spoke up about a need for reform.

"The [Independent Review Commission's] recommendations seem to be heavily focused on prevention rather than any for actual processing or investigation of potential crimes," Rep. Lisa McClain, R-Mich., said during the hearing. "Prevention, yes, is critical and is extremely important, but we also have to have an actual process for investigation."

Confusion and delays surrounding investigations appears to be the norm, according to advocates and victims interviewed by Military.com. There are also consistent reports of alleged perpetrators taking advantage of positions of power to harass and pressure subordinates to engage in sexual relationships.

April, a senior airman in the Nevada Air National Guard who asked to be referred to by that name because she remains in the military, was recently awarded a transfer to another state after a long battle with superiors over rape charges she filed against a master sergeant in her unit.

She said she was groomed by the NCO at the 152nd Airlift Wing near Reno, after seeking him out as a mentor. They became friends and spent time together on evenings and weekends, engaging in recreational activities such as four-wheeling and shooting.

At some point, however, friendly jokes between the two that contained sexual innuendo became uncomfortable and his comments about other women and female body parts grew darker, she said. She told police he forced her to touch him and then raped her on multiple occasions, in several locations, including drill weekends.

In November 2019, she called a chaplain, who told her to contact the unit's sexual assault response coordinator. She did but said that the SARC and another senior airman prevented her from going to the police.

The police and unit eventually did get involved, with law enforcement launching an investigation and the National Guard transferring the alleged perpetrator to another base while the case was investigated. They placed a restraining order on him so he would not be able to go near April, but also made her life hell -- reducing her hours and pay, violating her privacy by openly discussing her case and refusing to put her on orders so she could get medical care -- saying that if she dropped the allegations, they would stop the retaliation, according to April.

The investigation yielded a 633-page report that concluded the pair had an affair and the sex was consensual. The Nevada Air National Guard concluded that such conduct was "prejudicial to good order and discipline," and the alleged perpetrator was booted from the service with an other-than-honorable discharge for fraternization.

He was never charged with sexual assault.

When the unit failed to prosecute and Reno closed the case, April requested that the Office of Complex Investigations review it. But the office declined, calling the Reno police investigation "... the most extensive report into an allegation of sexual assault this office has ever been presented for review," according documents provided by April's attorney, Lindsey Knapp, executive director of Combat Sexual Assault, a nonprofit advocacy group based in Sanford, North Carolina.

While not naming the Nevada case directly, Walker, the director of the National Guard's Office of Complex Investigations, said that in all 775 reports of sexual assault reviewed by the OCI, none involved strangers and all were difficult to investigate and draw conclusions on. That is because the lack of witnesses or evidence often results in cases that don't hold up to "constitutional scrutiny," which, he said, means investigators must respect victims' rights but also uphold the accused's rights to due process.

"One thing I think that does victims a disservice is that [media] reporting seems to create this idea that we're not doing anything on sexual assault when, in fact, we may be doing as much as we legally can or constitutionally can," Walker said. "The reality is any system we put in place has to be constitutionally sound."

Still, issues that include dismissing service members' concerns and ignoring complaints of sexual harassment, assault and crimes are widespread across the country.

Some states are working to strengthen their handling of sex crimes.

The Virginia Army National Guard has embraced a new training program designed to teach soldiers how to respond to colleagues who say they have been sexually assaulted and what they should do to get help.

And in May 2021, more than a year after April filed a report alleging that she had been raped multiple times by her master sergeant, Nevada Gov. Steve Sisolak signed a bill that made sexual harassment a crime in the state's National Guard and aligned the Nevada justice code with the Department of Defense's legal definitions for sexual assault and consent.

April's request for an expedited transfer in Nevada to another unit was initially denied because the unit maintains that her assaults were consensual, the result of fraternization and adultery. But she continued fighting and was able to transfer and continue her career.

She doesn't understand why she had to fight so hard, when there are guidelines for reporting sexual assaults and personnel assigned the task to help victims.

"I had to go on being like, 'nothing's wrong' ... But you're still working with that same chief, that same command, that same superintendent that doesn't give a f--- about you," she said.

-- Steven Beynon can be reached at Steven.Beynon@Military.com. Follow him on Twitter @StevenBeynon.

-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime.com.

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