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Still Exempt From Title IX
Congress gave the service academies a pass before they enrolled women. 35 years -- and numerous reports about sexual assault later -- why is exemption still there?
The United States Air Force Academy has ordered a probe of its athletics department after a report in The Colorado Springs Gazette detailed numerous violations of academy rules, including several instances of sexual assault.
At a 2011 party, according to the newspaper, players offered women a "girls-only" drink laced with a date rape drug, and allegedly committed gang rape later that night. An investigation into that party led to the disenrollment and prosecution of several cadets, Lt. Gen. Michelle Johnson, the academy's superintendent said in a statement last week.
It's the second high-profile sexual assault scandal at the academy in a decade. A 2003 investigation -- prompted by an anonymous email sent to lawmakers that described the academy's alleged apathy toward a growing rape problem -- found that 20 percent of women enrolled at the academy said they had been sexually assaulted. A 2004 survey that included responses from every woman at the Air Force, Navy, and Army academies found that 302 women (about 10 percent) said they had been raped. Only 54 cases of sexual assault were officially reported the entire decade.
But the the Air Force Academy is not named on the Department of Education's quickly growing list of colleges under investigation for mishandling cases of sexual assault. And those 54 reported cases can't be found in Clery Act statistics, either. That's because the five federal service academies -- the Air Force Academy, the Coast Guard Academy, the Merchant Marine Academy, the Naval Academy, and the Military Academy in West Point -- are exempt from both Title IX and the Clery Act.
As both laws are increasingly used as the federal government's weapons of choice in combating campus sexual assaults, women's groups and victim advocates are questioning why the military academies continue to be exempt.
“As far as I’m concerned, there’s no good reason, no fair or logical reason, that the academies are exempt from Title IX and the Clery Act," Anu Bhagwati, executive director of the Service Women's Action Network, said. "If you’re a 17-, 18-year-old student and you’re looking at your future, you are concerned about the risk of sexual harassment or assault or discrimination at your next place of learning. You’re far more likely to experience those things at military academies. There’s really no question about that.”
The academies contacted for this article either did not respond to a request for comment or they referred questions to the Department of Defense. The department's Sexual Assault Prevention and Response Office did not reply.
When Title IX first became law as part of the Education Amendments of 1972, the admission of women to the service academies was still three years off. But now, nearly 35 years after the graduation of the service academies’ first female students, there are many women who need Title IX's protections, said Neena Chaudrhy, senior counsel at the National Women's Law Center.
“The exemption is built into the statute, but you should have to show that you still need that,” Chaudrhy said. “We certainly see now that there are a number of issues that Title IX could help address in military academies that were not issues then, including pregnancy discrimination, and of course sexual harassment and assault.”
The prevalent argument now is that military academies are different enough from colleges that it doesn’t make sense to put them under the same umbrella.
The students, like all members of the armed services, are already subject to the uniform code of military justice. As the code is the foundation of military law, academy cadets can face much harsher punishments than typical college students. Colleges can suspend or expel a student they believe committed a sexual assault. Academy cadets can be court-martialed.
And it does sometimes happen: a Naval Academy football player faced a court-martial in 2013, after he was accused of sexually assaulting a female midshipman, though he was found not guilty. Late last year, Congress approved changes to the code to toughen sanctions even further.
But, while the number of sexual assaults reported at two of the three major military academies has fallen in recent years, according to annual reports that the academies must provide to the Department of Defense, sexual assault remains a serious issue in the military and at its academies. Throuhgout the academies, 70 cases were reported last year, but surveys have shown that instances of sexual assault at military academies are still widely underreported. In 2012, 26,000 service members across the military said they had received unwanted sexual contact.
“They say, ‘We take care of our students and you need to leave us alone to do that,’ ” said Beth Hillman, a former Air Force Academy history professor and current provost of the University of California Hastings College of Law. “But we’ve left you alone for a long time, and you have not fixed this problem."
The problem is not that sanctions for offenders are weak, said Kristine Newhall, a lecturer at the University of Massachusetts and contributor to the Title IX Blog, but that too few sanctions exist for service academies who mishandle or fail to enforce sexual assault policies.
“They can say that they have policies in place that are already effective," Newhall said. "The issue in saying that is, who oversees how effective they really are? Every school, whether military or not, will say their policies are effective. But we have the Department of Education's Office for Civil Rights that can come in and say, 'No, they’re not,' and in a very public way. That isn’t the standard that military academies are being held to.”
College and universities that mishandle sexual assault cases on their campus are subject to investigations by the Office for Civil Rights and any student can file a complaint to prompt such an investigation. The names of institutions under investigation are displayed on a publicly available list. If they don't comply with Title IX laws, institutions can lose federal financial aid funding. At a summit about campus sexual assault organized by Dartmouth College in July, Catherine Lhamon, the assistant secretary who oversees Office for Civil Rights, said she has already threatened to pull federal funding at four colleges.
Lhamon has no such power over service academies. There are no Title IX officers for a sexual assault victim to turn to, nor can they file a complaint with state and federal offices if they believe their case was mishandled. The power for sending offenders to a court-martial remains with commanders, not prosecutors. Furthermore, victims cannot bring civil action against their academies because of the Feres Doctrine, which bars service members from suing the military in civilian courts.
Without Title IX, women have very few civil rights protections at military academies, Bhagwati, of SWAN, said.
"Both within the academies and the broader military, there’s very little legal deterrent to enforcing good policy and protecting students," Bhagwati said. "Your institution has no incentive to do the right thing, so you’re just counting on the character of your leadership. This makes being a woman at the service academies a very, very risky thing.”
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