Army Verdict Could Stifle Female Soldiers

Although Friday’s court-martial verdict was a clear victory for Sgt. Maj. Gene C. McKinney, the jury’s stunning decision to acquit the Army’s former top enlisted man on all sexual misconduct charges sends a harsh message to the Army and its female soldiers.

Service members and military analysts predicted Saturday that the verdict will have a chilling effect on female soldiers who believe they have been the object of unwanted sexual advances by superiors.

“It’s going to send the message ‘don’t come forward,’ ” one senior Army officer said. “If you’re experiencing a problem, don’t come forward, because you’re going to be revictimized. Take care of it yourself. But don’t try to use the system.”

For the Army, that message could have far-reaching consequences, making it harder to deal with a problem that can erode discipline, sap morale and drive women from its ranks. In September, the service issued a scathing critique of itself, charging both that its mechanism for reporting sexual harassment and discrimination charges is woefully inadequate and that Army leaders have allowed the problem to persist. The report found that one in five Army women believed they had been victims of sexual harassment.

The candor of those admissions surprised many Army women and military analysts, who saw--and in many cases, still see--the service’s decision to bring McKinney up on formal charges as a sign of the Army’s new commitment to addressing the problem.

But in the end, they said, McKinney’s jury trial became an exchange of fire between outgunned women and a powerful, compelling man--a case of “he said, she said,” military-style. And although “he said, she said” is a familiar formula in civilian sexual harassment trials, experts cautioned it can have unpredictable effects when it plays out in a military setting.

But the McKinney case has done more than dramatize critical differences between the civilian legal world and a quirky military justice system, say those who study the nation’s armed forces. In the long months over which McKinney’s legal drama has played itself out, the case also has exposed some of the most significant fault lines in the armed forces today: those of gender, race and rank.

Most important, say analysts familiar with military law, one must understand how the distinctive rules of military justice might have affected the outcome of the McKinney trial. Whereas civilian courts treat sexual harassment largely as a civil matter, the military has the option of prosecuting it as a criminal offense--on the argument that it is an abuse of power that could jeopardize the good order and discipline essential to military effectiveness.

To understand why the Army needs to have the option of treating sexual harassment as a criminal matter, analysts say one need look no further than Aberdeen Proving Ground. At that training installation in central Maryland, officials last year uncovered a clutch of drill sergeants playing a game of sexual conquest with young Army recruits under their command.

Given the extraordinary power drill sergeants have over such recruits, it mattered little that some--though not all--of the alleged sex was said to be consensual. Lawmakers and Army officials argued that it was a gross abuse of power for the sergeants to seek or agree to sex with their subordinates. Four of 12 soldiers charged in the scandal received prison terms.

In the McKinney case, however, the decision to treat the sexual misconduct charges as a criminal case set the standard of proof at a very high level, requiring jurors to find McKinney guilty “beyond a shadow of a doubt.” When the evidence of sexual harassment amounted to his word against those of even a number of women whose stories were similar, the jurors apparently did not conclude that the prosecution met the higher standard.

Moreover, finding McKinney guilty would have meant sentencing him to jail time for charges that in a civilian court would have been punishable by a fine at most.

“There’s a problem with the military justice system itself, since the system criminalizes these acts,” said Nancy Duff Campbell, head of the Washington-based National Women’s Law Center. “Juries hesitate to send people to prison for such offenses.”

As it is, McKinney’s single conviction--on a charge that he attempted to obstruct an investigation--means he faces up to five years in prison and a dishonorable discharge.

Beyond that, although race might have played no part in Friday’s verdict, the McKinney case has exposed a persistent racial fault line within today’s military.

McKinney, who is the first African American to have risen to the Army’s top enlisted post, has asserted that the charges against him are tinged with racial bias, in part because his six accusers are white. Within the Army’s enlisted ranks, more than 30% African American, that charge has had substantial resonance.

“What if he’d been found primarily guilty and they’d thrown the book at him? You would have had an even greater disaffection among blacks,” said Charles Moskos, a Northwestern University military sociologist and author of the book “All That We Can Be: Black Leadership the Army Way.”

McKinney also roiled relations within the Army by charging that his status as an enlisted man--a member of the military’s working class as opposed to its elite officer corps--marked him for unfair treatment. Had he been an officer, McKinney asserted, he would have been allowed to retire or step aside without the public humiliation of a court-martial.

But some suggest McKinney’s rank actually worked in his favor, since he outranked all but one of his six accusers. Once again, experts point to the military’s strictly hierarchical structure as an essential ingredient to military effectiveness. But they acknowledge that in sexual harassment cases, it can make justice tricky to achieve.

In a contest of “he said, she said,” it is difficult for military jurors, who are steeped in the traditions of rank and privilege, to weigh the word of a 29-year veteran on a par with far more junior accusers.

Finally, some Army women contend that in an organization of more than 85% men--a service that continues to struggle with the proper roles and status of women--pitting his word against hers is an unfair fight. Among those who have followed the McKinney case closely, that conviction deepened as the motives and reputations of the six accusers--some of whom came forward unwillingly or under orders--were subjected to harsh scrutiny.

“They’ve been savaged,” Susan Barnes, an attorney representing retired Sgt. Maj. Brenda Hoster, told the Associated Press on Saturday. McKinney’s attorneys, with the assent of the military judge presiding, publicly aired often-humiliating details of the accusers’ personal lives, including unplanned pregnancies and out-of-wedlock babies. And they portrayed the women as vengeful liars of bad character trying to bring down an honest man.

As the jury’s not-guilty verdicts were read on Friday, Hoster--a former speech writer for McKinney who brought the first public charges against him--shook her head in disbelief.

“The verdict would suggest to [female accusers] that they are not believable in a ‘he said, she said’ situation,” said a senior female officer who recently retired from the Army. “It’s a very classic defense to attack the female, to make the allegation that the women are conspiring to get the male. And that’s very credible in our culture and in a male-dominated jury. Most Army women will feel somewhat betrayed they’re not able to speak out.”

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Times staff writers Robert L. Jackson and Tom Schultz in Washington and researcher Edith Stanley in Atlanta contributed to this report.