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SEPARATING THE SEXESMarch 16, 1998The NewsHour with Jim Lehrer Transcript |
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Although an Army jury cleared Sgt. Major McKinney of sexual misconduct charges, the recent spate of sexual harassment cases has prompted the defense secretary to order some changes in basic training programs. Following a background report, Margaret Warner and guests discuss the possible impact of basic training changes.
MARGARET WARNER: For more on all this we turn first to retired Air Force Colonel Scott Silliman, who was a lawyer and legal instructor in the Air Force from 1968 to 1993. He’s now executive director of the Center on Law, Ethics & National Security at Duke University Law School.
A RealAudio version of this segment is available.
NEWSHOUR LINKS:
March 16, 1998:
A background report on sexual harassment cases in the military.
December 16, 1997:
A special commission suggests separating military training by gender.
September 11, 1997:
A report on the problem of sexual harassment in the U.S. Army.
May 22, 1997:
The U.S. Air Force grants a general discharge to First Lt. Kelly Flinn.
May 22, 1997:
Why should the U.S. Air Force care if Lt. Kelly Flinn had an affair with a married man?
April 30, 1997:
Should the military have gender integrated training?
April 29, 1997:
Staff Sergeant Delmar Simpson is found guilty of 18 counts of rape in a military trial.
November 8, 1996:
Army Secretary Togo West discusses incidents of sexual harassment in female U.S. Army recruits.
Browse the NewsHour's coverage of military.
OUTSIDE LINKS
From Congressional Times Journal, a career overview of Sgt. Major Gene McKinney.
Col. Silliman, explain to us how a military trial works, how it is different from a civilian trial, and how you think that contributed to this verdict in which the jury sided with Major McKinney--Sgt. Major McKinney against six women.
The McKinney verdict.
COL. SCOTT SILLIMAN (Ret.), Duke University: Well, in many respects, the trial is the same in that you have evidence heard in the findings portion of the trial. One significant difference of course, is that the convening authority, the general at Ft. Belvoir, was the one that selected the jury, and they are all a blue ribbon jury. Sgt. Major McKinney was requested and received 1/3 of that jury be enlisted members, and that was done, so you had a four officer/four enlisted jury that heard the evidence. Also, the defense puts Sgt. Major McKinney’s character into issue. They asked the jury to consider whether a man of Sgt. Major McKinney’s background, credentials, successes, as he’s come up through the grades, would have been the type of person who would have committed these acts. So the character is very much an issue. The jury saw and heard the evidence, saw and heard the demeanor of the testimony of the witnesses against Sgt. Major McKinney, and, as you know, came out last Friday with a single finding of guilt on obstruction of justice. So they obviously did not think that the government had proved the other 18 counts beyond a reasonable doubt.
MARGARET WARNER: Now, you raised two issues there. First of all, this character defense. Now, that is different from a regular similar, even criminal case. That’s a special military--special military procedure for defendants, as you can take into account your full record.
COL. SCOTT SILLIMAN: Right. Well, the rules of evidence, the military rules of evidence used by the courts-martial and the armed forces allow an accused to put his character into issue when it can show that he would not be the type of individual who would commit this type of offense, or to rebut government evidence to the same.
MARGARET WARNER: And it can be used to suggest that it doesn’t--that a reasonable doubt can exist just because of his wonderful record?
COL. SCOTT SILLIMAN: That’s exactly correct.
MARGARET WARNER: Now, explain one other thing to me. If these charges were brought in a civilian world, they wouldn’t necessarily be criminal charges, would they?
COL. SCOTT SILLIMAN: No. This would normally have been a civil suit, if we’re talking about a civilian trial outside the military. But, you see, the military has separate rules, and the code, the Uniform Code of Military Justice, specifically considers as criminal the type of sexual harassment charges that were brought against Sgt. Major McKinney. So this needed to be in a criminal forum in the military, and the army took it to exactly that type of forum.
MARGARET WARNER: And that means that there’s a higher standard of proof that has to be proven than in a normal sexual harassment case?
Military trial vs. civilian trial.
COL. SCOTT SILLIMAN: Well, yes, because in a civilian trial you’d be dealing with a preponderance of the evidence, basically 5149. Of course, here proof beyond a reasonable doubt, the criminal standard is a much higher standard to prove.
MARGARET WARNER: And I also gathered that this jury of eight people in a civilian trial to acquit, all eight jurors would have to vote "not guilty." But that isn’t necessarily the case here, is it?
COL. SCOTT SILLIMAN: Well, here in the military system, the way Congress established it under the code 2/3 of the jury must vote to convict, and if they do not have a 2/3 vote on each and every charge that was brought against Sgt. Major McKinney, then it automatically results in acquittal.
MARGARET WARNER: No hung jury? There’s no hung jury as an option?
COL. SCOTT SILLIMAN: No. In this case, if you do not have a conviction by 2/3, then it results in an acquittal on that particular charge.
MARGARET WARNER: So, in other words, if even just three jurors thought he was not guilty, that’s enough for an acquittal?
COL. SCOTT SILLIMAN: That’s exactly correct in this particular case.
MARGARET WARNER: And finally, one other thing that people--commentary has questioned is how could he be found guilty of obstructing justice by a jury that doesn’t agree there was a crime, an underlying crime to conceal?
COL. SCOTT SILLIMAN: That’s what makes the jury’s verdict a bit puzzling. The fact that they heard the tape that was taken of Sgt. McKinney when he was talking to Sgt. Fetrol, that obviously was overwhelming evidence that the jury really believed that he had tried to manipulate her testimony, tried to suggest that she should testify other than she did. Now, the jury had to, on the other hand, believe that there was not evidence beyond a reasonable doubt of the underlying sexual allegation. It’s a puzzling verdict, but we will probably never know unless one of the jurors, themself--or herself starts to talk about it.
MARGARET WARNER: Okay. Stay with us, Colonel. Let’s now bring in two long-time students of military culture. Charles Moskos, a sociology professor, specializing in military issues at Northwestern University, he’s the author of many books, including, All That We Can Be: Black Leadership and Racial Integration the Army Way. And Linda Bird Francke, author of Ground Zero, the Gender Wars in the Military. Ms. Francke, what’s your reaction to this verdict, and what impact do you think it’s going to have within the military?
"...I think this sends a message to women in the military not to stand up, not to come forward...."
LINDA BIRD FRANCKE, Author: Well, I think the verdict is actually chilling because it totally discounts the testimony and the experience of six separate women whom I can’t believe are all liars, cheats, and frauds. And I think this sends a message to women in the military not to stand up, not to come forward, because look at the price you’re going to have to pay. I understand that each one of these women now is leaving the army. Brenda Hostetler has already retired. But the others are now leaving the army because they don’t dare stay in. Some are getting death threats and others are under a Witness Protection Act. You know, I mean, these are--it’s a scary place in the military when you stand up and you single out yourself, and then the forces can land on you.
MARGARET WARNER: Mr. Moskos, how do you see the verdict and the impact, likely impact?
CHARLES MOSKOS, Northwestern University: I see it as a double-edged message. Certainly, as Linda Francke has pointed out, it means that charges of sexual harassment are going to be much more closely scrutinized than before. People are going to be more skeptical. But at the same time, it also proves that a very senior person in the army can find his career ruined by charges that are found not to be borne out by the evidence. I might also make a third point here, which is that when push comes to shove, we do have survey data that show that women in the army, for all the problems they may confront here, have much higher job satisfaction, and work satisfaction levels within the service than do civilian women on the outside.
MARGARET WARNER: Do you agree with Ms. Francke, that this is going to make women in the military feel more reluctant to come forward? I mean, we heard the lawyer for Sgt. Major McKinney saying the women should work the chain of command and complain right away. Do you think this is going to make it more or less likely?
"If the man has been found not to have committed any of these acts, he’s the one whose career has suffered the most."
CHARLES MOSKOS: It may or may not, but, don’t forget, the Sgt. Major was found innocent. I mean, you might say he’s the real victim here. If the man has been found not to have committed any of these acts, he’s the one whose career has suffered the most. We might have to think of more innovative ways of getting women, however, to report harassment cases promptly and effectively, such as a separate female chain of complaint, which the Israeli army has found very effective both in getting women to turn in harassers and at the same time to reduce the numbers of false accusations.
MARGARET WARNER: Ms. Francke, do you think that, in fact, this might lead to--that there’s a need for more balance and balance against perhaps false accusations?
LINDA BIRD FRANCKE: Well, of course, but I don’t agree with Charlie about having a female chain of command. The whole point--
CHARLES MOSKOS: Chain of complaint.
LINDA BIRD FRANCKE: Or chain of complaint--sorry--is that we don’t have a woman’s army and a man’s army--we have the United States Army. And we must do everything we can to bring the genders together and not treat them separately.
MARGARET WARNER: Okay. Ms. Francke, staying with you and on that point, let’s shift now to Sec. Cohen’s announcement today about changes in the gender-integrated training. What, in general, did you think of those steps?
"I think that the separation of barracks is a great mistake."
LINDA BIRD FRANCKE: Well, I think that the separation of barracks is a great mistake. I think that keeping the small units integrated is a very good thing. But when we had segregated barracks before and women lived separately in so-called "Wack shacks" during the 70's and then on up, they became natural targets for male marauders, you know, it’s almost a sophomoric, let’s go get ‘em attitude, and created an awful lot of trouble. I think the critical thing here is discipline, a sense of loyalty, and all those things that the military stands for, which should be indoctrinated in the recruits from the beginning, and they should learn to live together from the beginning, as they do on civilian campuses, after all, as they do in all the military academies, West Point, Annapolis, Air Force, you know, and they’re all the same ages, they’ve all just graduated from high school. I think it’s a question of the military really putting the emphasis on making it work. And I don’t think it’s been there until now.
MARGARET WARNER: Mr. Moskos, what do you think about separate housing, is that a mistake?
CHARLES MOSKOS: No, it’s not a mistake. I think Sec. Cohen was on the right track following the Kassebaum-Baker report. The real object here, what we always have to keep in mind is we want to worry about the safety and security of enlisted women. Most of the talk usually focuses on career opportunities for female officers. 85 percent of all women in the military are enlisted. And, by the way, in the army half of those are black, a group that we haven’t talked about, how they feel about these kinds of issues. And don’t forget, we did fight the Gulf War, which everybody considers a successful war on our side, with men and women who had been trained in gender-separated basic training units.
MARGARET WARNER: But why do you believe that separate living is a good idea? What’s the problem it’s going to correct or address?
CHARLES MOSKOS: The main problem it corrects is the elephant in the living room that nobody wants to mention, it would just--what do you do about consensual sex among people of comparable or equal ranks? This is what women and men will tell you if you go to a basic training unit is a problem. What the secretary is trying to do is to reduce that problem. What’s--is it the end of the world if people separate the sexes for eight weeks? We do that in other contexts, and the point here is you have to maintain some level of a modicum of privacy between the genders.
MARGARET WARNER: Colonel Silliman, weigh in on this. What do you think of what Sec. Cohen announced today, particularly the separate housing?
COL. SCOTT SILLIMAN: Well I really don’t think it’s going to make a significant difference. My understanding is that in the basic training units you do have as much as possible a separation of living facilities and a guarantee of as much privacy as you can possibly do. I think all the secretary’s really doing is reaffirming what the services have attempted to do within the overall process of the integrated training. You’re not going to have young men and women sleeping right next to each other in any of the services. But the secretary is really wanting the services to make sure that there is as much privacy as possible, make sure there is as much distance between the sexes as possible in the living conditions, but I really think that’s being done to a large extent right now.
MARGARET WARNER: Ms. Francke, the Senator--former Senator Kassebaum-Baker’s report--a commission and report was all in response to what happened at Aberdeen. Do you think that the steps announced today--taken in their totality--will prevent the kind of thing that happened at Aberdeen?
"It was a trophy trial, which unfortunately he got caught up in and so did the women involved."
LINDA BIRD FRANCKE: Well, I think the army is certainly going in the right direction, and I agree that the court martial of the Sgt. Major--Sgt. Major McKinney was an important step. It was a trophy trial, which unfortunately he got caught up in and so did the women involved. But the army is finally now holding senior personnel responsible for their behavior, and this has not happened before. We have to remember that the very first hearings on sexual harassment were held in 1980. And so the army has known all it has needed to know about sexual harassment since then but has not really acted on it until now. So I find that the only way we’re going to make the genders work easily and well, as they should in the military, is to hold behavior accountable. I don’t think attitudes are ever going to change, but behavior can be modified.
MARGARET WARNER: Let me, let the two gentlemen also respond. Mr. Moskos briefly, do you think all the steps and developments of today will prevent another Aberdeen?
CHARLES MOSKOS: It will reduce the likelihood of an Aberdeen. We are always going to have sexual chemistry, whether it’s between superiors and subordinates or between equals. These steps will help the problem, but it’s never going to go entirely away. I might add--you know, Linda’s--you know--book on Ground Zero ended on a very pessimistic note, on this very question, that there are always going to be gender conflicts and problems between the sexes.
MARGARET WARNER: Col. Silliman.
COL. SCOTT SILLIMAN: Well, I think something that’s not been mentioned that’s crucial here, and that’s the services have to avoid any abuse of power. That was certainly the instance with Aberdeen. It was the principal ingredient the government tried to show in the Sgt. Major McKinney case, and if you’ve got the wrong people in positions of leadership that are abusing power over subordinates, there’s no way you’re going to avoid this. And of course, I was heartened to see Sec. Cohen making sure that that was one of the recommendations that would be carried out.
CHARLES MOSKOS: One thing you have to worry about, though, if I may add, about the power question. Of course there’s a power relationship, but don’t forget, NCO’s and officers are supposed to have power. If you carry that argument too far, then you’re going to have to say, well, we’ll just have to separate the genders.
MARGARET WARNER: All right. Mr. Moskos, I’m sorry. We’re going to have to leave it there, but thank you all three very much. I’m sure we’ll be back to this.