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Military Law,
Civil Rights

Jan. 8, 2020

Military sexual trauma is getting worse

The law isn’t doing the job. The #MeToo Movement hasn’t made a difference. What about the movies?

Moore eileen web

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal, and the Cross of Gallantry with Palm. She is a member of the Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council's Veterans and Military Families Subcommittee. For nine years, she served as a mentor in a Veterans Treatment Court, primarily to women veterans. In 2015, her book "Gender Results" received a Benjamin Franklin award. (Cool Titles, 2014)

Last January, I wrote a column about military sexual trauma. From last year's #MeToo standpoint, there was reason to hope for change. As it turned out, however, matters ended up getting worse rather than better. The Department of Defense Annual Report on Sexual Assault in the Military reported significant increases of military women undergoing sexual assaults, concentrated among service women aged 24 and under.

Since the law is not stepping up to the plate to stop the travesty of sexual attacks in the military, I decided to look into the movies to see whether the film industry has been sending messages to the public about these assaults. There is historical precedent showing that popular culture can influence public thinking about vital human issues. I wondered whether audiences are been alerted to the problem in some way other than through the law. So I watched movies portraying women in the military and as veterans to look for any indication help may be coming from Hollywood. This is what I found.

Once upon a time in Hollywood...

There was a time when Hollywood movies were neck to neck with U.S. Supreme Court decisions involving great social change. Films appeared to be part of shaping attitudes about what the law should require. Sometimes the film industry was even ahead of our highest court.

"Raisin in the Sun" (1961) sympathetically portrayed the Younger family facing a move into a white neighborhood over the protests of their soon-to-be new neighbors. The film justified the Supreme Court's decision in Shelley v. Kraemer, the holding that announced restrictive covenants in housing would no longer be upheld in the courts. In "To Kill a Mockingbird" (1962), Atticus Finch and the judge sit on a porch rocker and discuss how important it is for an accused to have counsel. Atticus is appointed by the judge to represent a man who would never have been able to afford a lawyer. That film paved the way for public acceptance of Gideon v. Wainwright the following year, the high court decision requiring appointed counsel for poor people. The issue of interracial marriage was tackled by both the Supreme Court and the movie industry around the same time. In fact, the film, "Guess Who's Coming to Dinner" (1967) has the character playing the father of the groom, Cecil Kellaway, making an almost identical statement to one made by Chief Justice Earl Warren in Loving v. Virginia, and the movie was released prior to the court's decision. Cecil Kellaway warned his son against marrying a white woman in the film, saying to his son, "In sixteen or seventeen states, you'd be breaking the law." Justice Warren wrote in the opinion, "Virginia is now one of sixteen States which prohibit and punish marriages on the basis of racial classifications.

In 1964, the Supreme Court issued Katzenbach v. McClung and Heart of Atlanta Motel, Inc. v. United States, holding that Congress acted within its power under the commerce clause in forbidding racial discrimination in restaurants and other public accommodations. The issues of service and public accommodations were shown in several Hollywood films around the same time. In "Lawrence of Arabia" (1962), Lawrence takes a Bedouin boy into the officer's club and orders him a lemonade from a bartender who doesn't want to serve a person of color. In "M*A*S*H" (1970), Hawkeye shocks a doctor from the South when he offers to house a black neurosurgeon in their quarters. When the Southerner balks, he is ridiculed for his prejudice. In "In the Heat of the Night" (1967), a black detective from the North is sympathetically portrayed when he is stranded in a backwater Southern town without any motel/hotel availability for blacks and is refused service in a restaurant.

The pre-1948 situation for women in the military and military films

Women have served the U.S. Armed Forces since the Revolutionary War. In World War I, 23,000 women served as nurses in the Army Nurse Corps and Navy Nurse Corps. In World War II, 400,000 women served in administrative and support capacities, as nurses, and, in smaller numbers, in up-to-then male-only positions such as air traffic controllers, mechanics, and even pilots, shuttling military aircrafts from location to location.

Whether filmed at the time or later, movies showing military women serving in World War II usually portrayed them sympathetically as nurses, and they were almost always beautiful. "So Proudly We Hail" (1943), "Here Come the Waves" (1944), "Pearl Harbor" (2001) and "Hacksaw Ridge" (2016) are examples. None of them concern sexual assaults or sexual derision.

The 1948-1994 situation for women in the military and military films

In 1948, women were integrated into the standing armed forces of the United States with the adoption of the Women's Armed Services Integration Act, although explicitly barred from draft registration and combat. A 1951 executive order from President Harry Truman provided that women could be discharged for motherhood or pregnancy. After the draft was discontinued in 1973 and the Soviets invaded Afghanistan, in 1980, President Jimmy Carter determined it was necessary to reinstitute the draft registration process. He requested funds to reactivate the Selective Service system for registration of both men and women, but Congress only allocated funds for the registration of men. In 1981, Rostker v. Goldberg was issued by the U.S. Supreme Court, holding that Congress had acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men but not women.

"I Was a Male War Bride" (1949) is a screwball comedy. Cary Grant dresses as an Army nurse. He looks silly, but his military wife does not. "M*A*S*H" portrays the most likeable female military nurse characters as the ones who provide sex to men upon demand. Throughout the film, women are evaluated by their looks. During surgery, a male military doctor says: "It's a good thing you have a nice body, Nurse, otherwise we'd get rid of you quick." Another says: "Give me at least one nurse who knows how to work close without getting her tits in the way."

In "Private Benjamin" (1980), the commanding officer, a colonel, says to a private played by Goldie Hawn, "Come to Papa. You want it, Benjamin. You know you do." When she does not cooperate, she is reassigned to Greenland to keep the Colonel's record unblemished. "Stripes" (1981) is another comedy, starring Bill Murray and John Candy. Two women, both drop dead gorgeous, serve in the military police. During the concluding credits, one of them is shown in a Penthouse magazine wearing only a towel in an article entitled "America's Fighting Women." Other women in the movie are either mud wrestlers or exotic dancers.

Demi Moore plays an experienced Navy lawyer who investigates a death at Guantanamo Bay in "A Few Good Men" (1992). Suspecting the death resulted from foul play, she asks to be assigned to the case, but a man a year out of law school, Tom Cruise, gets the assignment. Moore bemoans, "I was hoping I would be taken seriously." Later, when she attempts to engage in a serious conversation about the case, Cruise says: "Wow, I'm sexually aroused, Commander." Later in the film, Jack Nicholson's character, a colonel, responds to a question about the case posed by Moore: "There is nothing in this world sexier than waking up in the morning next to a woman you have to salute." When Moore doesn't back down in speaking about the case, Nicholson amps it up by using coarse and crude language about a sex act.

The 1994-2012 situation for women in the military and military films

Over a decade after the Rostker decision, limitations on women in combat were made official. In 1994, the Department of Defense issued a "ground combat exclusion policy," stating: "Service members are eligible to be assigned to all positions for which they are qualified, except that women shall be excluded from assignment to units below the brigade level whose primary mission is to engage in direct combat on the ground."

Meg Ryan portrays a commanding officer in "Courage Under Fire" (1996). The film shows the deep resentment the men under her command feel for her. Demi Moore plays another military woman in "G.I. Jane" (1997). She is treated miserably by her male colleagues and the commanding officers. She is demeaned for everything she does and viciously beaten by a drill instructor. Supposedly she is a Navy Seal, a position a woman has yet to achieve in real life.

In "The General's Daughter" (1999), a female cadet at West Point is gang raped. The military covers up the crime. The character portraying the commander of West Point states: "Better one unreported and unvindicated rape than to cast suspicion on a thousand men."

"Home of the Brave" (2006) shows a woman soldier having fun playing basketball with the men in Iraq. Later, several of them are wounded when their truck hits a roadside bomb. The woman and two men are featured as returning soldiers. The film is sympathetic toward the soldiers. It does not portray military sexual trauma.

"Return" (2011) is a sad depiction of a woman returning from military service in the Middle East. She finds her husband has been having an affair. She ends up in therapy and then loses custody of her children. She is portrayed as a very sympathetic character. She joined the military so she could have her college tuition paid, but was confused and upended by what she saw while serving. In speaking about her experiences, she says to a friend that a lot of people had it worse than she did and that, "I didn't get raped in a porta-potty."

"Megan Leavey" (2017) is about a woman Marine who is paired with a military dog in Iraq in 2006. The film sadly portrays both Megan and the dog suffering from PTSD, but shows no indication of military sexual trauma.

The situation for women in the military and military films since 2012

The 1994 policy was modified in May 2012 with the opening of as many as 14,000 additional jobs for women in the military, primarily in the Army and Marine Corps. Nonetheless, upward of 238,000 military jobs were still off limits to women. The most prominent argument in support of excluding women from combat was that women are, on average, physically weaker than men. In reality, women did serve in combat, but their service was not officially recognized. On Jan. 23, 2013, the Pentagon lifted the ban on women in combat. In December 2015 then-Defense Secretary Ash Carter directed all branches of the military to open all jobs to women, including the most dangerous commando units. His order came a mere four months after First Lieutenant Shaye Haver and Captain Kristen Griest became the first women to successfully complete U. S. Army Ranger School. Today there are at least five Ranger-qualified women in the U.S. Army.

"Seal Team Six: The Raid on Osama bin Laden" (2012) has no women on the Navy Seal team, a reasonable portrayal since there were no women on the actual team. It does show a woman military intelligence officer who comes up with the idea to do a vaccination study as a ruse to find out who was living in the compound where they suspected Osama Bin Laden was hiding.

"Eye in the Sky" (2015) has a multi-national military team working on a coordinated effort to kill a terrorist in Nairobi. The main theme concerns the ethics of drone strikes. The film's lead plays a female British colonel. One of two American Air Force pilots is also a woman as are one of the Kenyan and one of the American intelligence monitors. A woman also plays the American Foreign Secretary. Throughout the film, women make many of the tough decisions. There are no indications of any sexual assaults on women.

"Jarhead 2" (2014) takes place in Afghanistan and does depict a woman Marine. She laughs as a male holds her from behind making humping motions into her at a drinking fest. When the unit is in-country, she competently works alongside the men, driving a truck. When a male begins speaking about personal matters, using a crude term describing her private parts, she tells him to leave her body out of the conversation. After their caravan is attacked, the woman actively takes part in the battle, killing a Taliban.

I viewed only one documentary, "The Invisible War" (2012). Watching the modern military as it really is for women was quite painful. Women who have been raped in the service have higher percentages of PTSD than men who served in combat, and 40% of homeless female vets were raped in the military. Most of the perpetrators were not prosecuted. One young woman told how the Marine Corps mandated Friday night pub crawling. The first time, even though she was ordered to drink a shot of alcohol, she asked for a glass of water because she didn't drink. As punishment, she was ordered to consume two shots. It wasn't long before she was raped. The Corps handled such problems with posters that read: "Wait until she's sober." A particularly excruciating part of the film was when the father of a young woman who had been raped, a big strapping career soldier, began crying. He had encouraged his daughter to go into the service. "The military will always take care of you," he had told her.

Conclusion

"The Invisible War" tried mightily to present a clear picture of the situation faced by women in the military vis-à-vis sexual assaults. Documentaries, however, do not get the attention of the public that popular films do. The film apparently didn't get the attention of Congress either, even though its filmmakers tried to send a message to both audiences and policymakers.

Popular Hollywood films largely portrayed military women and women veterans with respect and accuracy. Sometimes movies touched on the topic of military sexual trauma, but not very much in recent decades. Unless movies do a lot more to reveal the true state of the sexual assaults military women face, we cannot depend on the film industry to be much help in alerting the public. All of our military forces together represent less than a half a percent of the population and women are only 15% of that half percent, so the film industry, always counting ticket-buyers, just might not be interested enough in the topic to do more.

Newspapers have published many editorials and op-eds about the problem of sexual assaults in the military. But the public has mostly abandoned newspapers. Perhaps some form of popular culture other than the movies will fill the void and capture the public's attention regarding the issue.

Meanwhile, it looks like the ball is in the law's court. And it's just sitting there. 

**2019 update on military sexual trauma law**

Even though actions against the federal government have been permitted since the Federal Tort Claims Act was enacted in 1946, those sexually assaulted in the military may not bring suit against the military because the U.S. Supreme Court carved out an exception to the FTCA's waiver of sovereign immunity in a 1950 opinion, Feres v. United States, when it determined the government is not liable for injuries sustained in the course of an activity incident to service. In 2019, it appeared the Supreme Court might be on the verge of poking a chink in the armor of the Feres doctrine by granting a writ of certiorari in Daniel v. United States, a medical malpractice case, but ultimately denied cert last May.

Last year's National Defense Authorization Act was poised to make powerful changes in the military's handling of sexual assaults. Ultimately there was a stalemate, purportedly due to discussions over a border wall, and the NDAA was silent with regard to sexual assaults. But the act, signed by President Donald Trump on Dec. 20, now authorizes claims for alleged medical negligence by service members. The claims will be adjudicated internally by the Department of Defense. The Feres doctrine remains intact

In California, early versions of Senate Bill 481 contained provisions allowing for suits against the California National Guard and its members for sexual assaults. The National Guard strongly opposed it, and when it was signed into law, those provisions had been removed.

#355720

Ben Armistead

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