Loyola University Chicago Law Journal Volume 45 Article 3 Issue 42014 Summer 2014 The Intertwined Fates of Affirmative Action and the Military Robert Knowles Valparaiso University Law School Follow this and additional works at:http://lawecommons.luc.edu/luclj Part of theCivil Rights and Discrimination Commons, and theMilitary, War, and Peace Commons Recommended Citation Robert Knowles,The Intertwined Fates of Affirmative Action and the Military, 45Loy. U. Chi. L. J.1027 (2014). Available at:http://lawecommons.luc.edu/luclj/vol45/iss4/3 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please [email protected]. KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM The Intertwined Fates of Affirmative Action and the Military Robert Knowles* This Article explores the deep connections between the crises facing the military and affirmative action. The military struggles with a sexual assault epidemic and a related failure to achieve gender and racial equality, both of which undermine its ability to effectively carry out its mission. Affirmative action faces growing skepticism from the American public and from the courts, which have been gradually eliminating the ground on which gender- and race-conscious measures can be constitutionally justified. In this time of crisis for both, the military and affirmative action need each other like never before. Affirmative action needs the military to tell the American public and the courts, once again, the story of how race- and gender-conscious measures permitted it to endure earlier crises and emerge as a stronger, highly respected institution. And the military needs affirmative action because it cannot hope to eliminate the damaging gender hostility within its ranks unless it uses gender- conscious measures to rapidly integrate its leadership—especially by assigning women to the combat positions from which they were unfairly excluded. If the military can once more lead by example, it may persuade a conservative Court to accept that there is still a place for affirmative action in American life. But the military must be willing to act and to use all of the available constitutional arguments in defense of its own policies, as well as those in civilian institutions. If affirmative action cannot survive in the military, it probably cannot survive anywhere in public life. Its fate and that of the military are inextricably intertwined. * Assistant Professor, Valparaiso University Law School. I must thank Rosalie Levinson, Christopher Schmidt, Nick Stephanopoulos, Jim Beckman, Rachel VanLandingham, Geneva Brown, JoEllen Lind, David Herzig, and participants in the Chicago Junior Faculty Workshop and Valparaiso Law Faculty Workshop for their helpful comments and advice. 1027 KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 1028 Loyola University Chicago Law Journal [Vol. 45 TABLE OF CONTENTS INTRODUCTION ................................................................................... 1028 I. A NEW TIME OF TROUBLES FOR AFFIRMATIVE ACTION AND THE MILITARY .............................................................................. 1033 II. LESSONS FROM THE MILITARY’S INTEGRATION SUCCESS STORY: THE STAGES OF INTEGRATION .......................................... 1044 A. Limited, Temporary Participation......................................... 1047 B. The Struggle for Formal, But Limited, Peacetime Integration ............................................................................. 1049 C. Crisis and Comprehensive Reform ........................................ 1054 D. The Integration Success Story ............................................... 1055 E. The Long Arc of Gender Integration ..................................... 1059 III. CHANGING MILITARY CULTURE: THE AFFIRMATIVE ACTION SOLUTION ..................................................................................... 1061 A. Barriers to Gender Diversity................................................. 1065 B. The Importance of Leadership .............................................. 1068 IV. THE CONSTITUTIONALITY OF AFFIRMATIVE ACTION IN THE MILITARY ..................................................................................... 1073 A. The Military’s Entitlement to Special Deference and Weaker Scrutiny ................................................................... 1074 B. Decisions Striking Down Military Affirmative Action Programs ............................................................................... 1077 C. The Future of Affirmative Action in the Military .................. 1081 CONCLUSION ....................................................................................... 1083 INTRODUCTION In 2013, the United States Department of Defense (“Defense Department” or “DoD”) abolished rules formally excluding women from hundreds of thousands of combat roles in the U.S. military.1 Although these positions will be opened gradually over several years, the prospect of a truly gender-integrated combat armed forces—seen only in science fiction2—is moving closer to reality. 1. See Memorandum from Martin E. Dempsey, Chairman, Joint Chiefs of Staff, and Leon Panetta, U.S. Def. Sec’y, to Sec’ys of the Military Dep’ts, Acting Under Sec’y of Def. for Pers., and Readiness Chiefs of the Military Servs. on Elimination of the 1994 Direct Ground Combat Definition and Assignment Rule (Jan. 24, 2013), available at http://www.defense.gov/news/WI SRJointMemo.pdf. 2. See, e.g., JOE HALDEMAN, THE FOREVER WAR (1974); STARSHIP TROOPERS (TriStar KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 2014] Affirmative Action and the Military 1029 These combat exclusions were one of the few remaining areas of formal occupational gender discrimination in American life.3 They also ran counter to the military’s own self-professed goals, including the “representation principle”—that the U.S. military should, from top to bottom, represent “the country it defends.”4 By 2013, women were formally excluded from only some 230,000 positions in the armed forces, out of millions. But these roles are key stepping stones for the top command positions, and female officers’ career prospects have long been constrained by their exclusion from them.5 Students of American history know, of course, that it is a long road from formal equality to tangible equality. Military culture, traditions, and practices remain, in many ways, uniquely and stubbornly inhospitable to gender equality.6 Even without formal exclusions from combat roles, women in the military face “not only restricted career options but also a higher chance of harassment, discrimination, and sexual violence than in almost any other profession.”7 A long-festering epidemic of sexual assault in the ranks has captured public attention and driven efforts at reform from Congress and the Pentagon.8 The hostility women in the military face is an outrage—not only because it prevents women from accessing the full benefits of military Pictures 1997). 3. For a thorough discussion of the ways in which American society is still gender segregated, both formally and informally, see generally David S. Cohen, The Stubborn Persistence of Sex Segregation, 20 COLUM. J. GENDER & L. 51 (2011). 4. U.S. DEP’T OF DEF., DIVERSITY AND INCLUSION STRATEGIC PLAN 2012–2017, at 4 (2012) [hereinafter DOD DIVERSITY PLAN] (emphasis omitted), available at http://diversity.defense.gov /Portals/51/Documents/DoD_Diversity_Strategic_Plan_%20final_as%20of%2019%20Apr%2012 %5B1%5D.pdf. 5. See Jill Elaine Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 MINN. L. REV. 96, 139–40 (2008); see also Heather S. Ingrum Gipson, Comment, “The Fight for the Right to Fight”: Equal Protection & the United States Military, 74 UMKC L. REV. 383, 403–04 (2005). 6. See infra Part III. 7. Megan H. MacKenzie, Let Women Fight: Ending the U.S. Military’s Female Combat Ban, FOREIGN AFF., http://www.foreignaffairs.com/articles/138200/megan-h-mackenzie/let-women- fight (last updated Jan. 23, 2013); see infra Part II.B. 8. The number of reported sexual assaults in the military rose sharply from 2010 to 2012, although the Pentagon attributed at least some of the increase to greater willingness by victims to report. See, e.g., Jennifer Steinhauer, Reports of Sexual Assault Rise Sharply, N.Y. TIMES, Nov. 7, 2013, http://www.nytimes.com/2013/11/07/us/reports-of-military-sexual-assault-rise-sharply .html; Jennifer Steinhauer, Sexual Assaults in Military Raise Alarm in Washington, N.Y. TIMES, May 7, 2013, http://www.nytimes.com/2013/05/08/us/politics/pentagon-study-sees-sharp-rise-in- sexual-assaults.html?pagewanted=all; see also 1 U.S. DEP’T OF DEF., ANNUAL REPORT ON SEXUAL ASSAULT IN THE MILITARY, FISCAL YEAR 2012 (2013) [hereinafter DOD FY 2012 ANNUAL REPORT ON SEXUAL ASSAULT], available at http://www.sapr.mil/public/docs/reports /FY12_DoD_SAPRO_Annual_Report_on_Sexual_Assault-VOLUME_ONE.pdf. KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 1030 Loyola University Chicago Law Journal [Vol. 45 service, but also because it threatens the military’s mission and reputation. Sexual harassment and assault—particularly when they go unpunished—sap morale and productivity while undermining unit cohesion.9 Persistent gender inequality makes it harder for the military to recruit talented personnel, marks the military as increasingly out of step with the nation it serves, and limits its ability to relate to those it must interact with abroad.10 In 2013, the Army Chief of Staff called gender inequality a “cancer” on the armed forces that would “destroy its fabric.”11 Moreover, as civilians’ views of gender equality evolve, the military’s striking failures in that area damage its reputation as a model of successful integration—which it achieved largely through the use of affirmative action.12 The military had, like civilian institutions, long resisted integration. But once it began to integrate, the military proceeded with urgency and breadth that outstripped most efforts elsewhere.13 Indeed, because of the military’s integration history and its institutional prestige, it still offers the most broadly appealing argument for affirmative action in civilian life.14 It was the military that did the 9. See infra Part I. 10. See infra Part I. 11. Pending Legislation Regarding Sexual Assaults in the Military: Hearing Before The S. Armed Servs. Comm., 113th Cong. 2 (2013) (statement of General Raymond T. Odierno, Chief of Staff, U.S. Army), available at http://www.armed-services.senate.gov/imo/media/doc/Odierno_ 06-04-13.pdf (“Sexual assault and harassment are like a cancer within the force—a cancer that left untreated will destroy the fabric of our force.”). 12. See infra Part II. In its broadest sense, “affirmative action” can mean any measures that promote integration and equality but are not constitutionally required. See Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 CALIF. L. REV. 1063, 1063–64 n.3 (2006) (“[Affirmative action] includes a broad range of policies and practices that are designed to respond to past discrimination, prevent current discrimination, and promote certain societal goals such as social stability or improved pedagogy.”). However, I use the term more narrowly here to refer to policies that are race- or gender-conscious rather than race- or gender-neutral. 13. See infra Part II. 14. The history of racial integration in the military has been told in e.g., MARTIN BINKIN, MARK J. EITELBERG, ALVIN J. SCHEXNIDER & MARUM M. SMITH, BLACKS AND THE MILITARY (1982); JACK D. FONER, BLACKS AND THE MILITARY IN AMERICA 186 (1974); MICHAEL LEE LANNING, THE AFRICAN-AMERICAN SOLDIER: FROM CRISPUS ATTUCKS TO COLIN POWELL 292 (1997); BERNARD C. NALTY, STRENGTH FOR THE FIGHT: A HISTORY OF BLACK AMERICANS IN THE MILITARY (1986); Stephen E. Ambrose, Blacks in the Army in Two World Wars, in THE MILITARY AND AMERICAN SOCIETY 177, 186 (Stephen E. Ambrose & James A. Barber Jr. eds., 1972); John Sibley Butler, Affirmative Action in the Military, 523 ANNALS AM. ACAD. POL. & SOC. SCI. 196, 196–97 (1992); Joseph James DeFranco, Blacks and Affirmative Action in the U.S. Military 16 (1987) (unpublished Ph.D. dissertation, University of Illinois at Urbana- Champaign) (on file with author). KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 2014] Affirmative Action and the Military 1031 most to rescue affirmative action in public universities from constitutional oblivion. In Grutter v. Bollinger,15 the Supreme Court relied heavily on an amicus brief by officers, senators, and former secretaries of defense in concluding that diversity was a compelling rationale for the use of some race-conscious law school admission policies.16 The amici had recounted the military’s successful use of race-conscious policies to integrate the armed forces.17 Yet the mortal danger to affirmative action is not over. The Court has since expressed ever-greater skepticism about race-conscious measures, even in higher education.18 Lower courts, to a lesser extent, have cast doubt on the legality of gender-conscious measures as well.19 The survival of affirmative action in public universities—and all public institutions—may very well hinge on whether the Court’s now-altered membership still finds the military’s arguments persuasive. And just as the future of affirmative action depends on the military, the future of the military depends on its willingness to use affirmative action aggressively. In short, as this Article explains, the fates of affirmative action and the military are intertwined. In Part I of this Article, I discuss the different crises now facing the military and affirmative action. In Part II, I discuss the lessons from the military’s past efforts at integration. In particular, I examine the divergent paths of racial and gender integration. Although the military used race-conscious policies to achieve greater integration in the services, an enduring cult of masculinity has made leadership much less willing to use gender-conscious policies to the same extent. Formally excluding women from important roles was just the most obvious example of this divergence. Yet even with respect to race, the military has fallen short of full integration.20 The current sexual assault crisis has forced the military to confront its deep discomfort with gender equality.21 As I explain in Part III, the military must expand its use of gender-conscious measures to shake off the mistaken belief that its effectiveness depends on preserving the cult 15. Grutter v. Bollinger, 539 U.S. 306, 308 (2003). 16. See Consolidated Brief of Lt. Gen. Julius W. Becton, Jr. et al. as Amici Curiae Supporting Respondents at 5, Grutter, 539 U.S. 306 (No. 02–241), 2003 WL 1787554 [hereinafter Becton Brief]. 17. See id.; see also supra notes 77–80 and accompanying text. 18. See infra Part I.B. 19. See Rosalie Berger Levinson, Gender-Based Affirmative Action and Reverse Gender Bias: Beyond Gratz, Parents Involved, and Ricci, 34 HARV. J.L. & GENDER 1, 14–15 (2011). 20. See infra notes 222–23 and accompanying text. 21. See infra Part II.E. KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 1032 Loyola University Chicago Law Journal [Vol. 45 of masculinity. It is the military’s own history that points to a solution. Just as aggressive race-conscious affirmative action enabled the military to reform itself amid the Vietnam War Era “time of troubles,” today’s military must expand its affirmative action programs—with a special emphasis on moving women swiftly into combat and command positions—so that diversity is reflected in the faces of its personnel, not just in its policies.22 Moreover, the military must take these measures despite the fact that it would be swimming against the current of public opinion. The type of strong affirmative action measures required for full integration of the military are, to the say the least, controversial.23 Many states have enacted measures, which the Supreme Court upheld, outlawing race and gender preferences in public education and employment.24 And even where affirmative action has survived political efforts to eliminate it, it still faces increasing hostility from the courts.25 Nonetheless, as I discuss in Part IV, the military’s affirmative action policies stand on a uniquely solid constitutional footing. Doctrines that require especially strong deference to military policies could enable affirmative action to continue in the armed forces even if the courts were effectively to banish it from every other public institution. More importantly, as history shows, the same cohesive and hierarchical military culture that currently stands in the way of full integration can, once a decision is made to reverse course, make that integration happen much more quickly than in civilian institutions. But the military must commit itself to bold and comprehensive steps toward integration and stand behind its policies when they face legal challenges. The future of both the military and affirmative action depends upon it. 22. David Maraniss, U.S. Military Struggles to Make Equality Work, WASH. POST, Mar. 6, 1990, at A1. 23. See infra Part III. 24. See, e.g., CAL. CONST. art. I, § 31 (California Proposition 209, which prohibits the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting”); MICH. CONST. art. I, § 26 (providing that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”), upheld as constitutional by Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means Necessary v. Regents of Univ. of Mich., No. 12-682, 2014 WL 1577512 (U.S. Apr. 22, 2014). 25. For a discussion of this hostility and possible causes, see generally Bertrall L. Ross II, Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics, 101 CALIF. L. REV. 1565, 1570 (2013). KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 2014] Affirmative Action and the Military 1033 I. A NEW TIME OF TROUBLES FOR AFFIRMATIVE ACTION AND THE MILITARY One of the darkest chapters in the recent history of the U.S. military was the so-called “time of troubles”—the late 1960s and early 1970s, when the armed services were facing defeat in Vietnam; riven with racial strife, poor morale, and fragging incidents; and generally unpopular with the American public.26 A number of factors— widespread disillusionment about the purpose and success of the Vietnam War among the armed services in general, increasing racial consciousness in American society, and frustration over lack of opportunity to be promoted—led to a crippling series of racial incidents in the services.27 In just two years, 1969 and 1971, the Defense Department recorded over 300 racial incidents, including “race riots” on military bases, resulting in the deaths of seventy-one American troops.28 In the fall of 1972, operations on two navy aircraft carriers were brought to a halt by racial unrest.29 The Assistant Secretary of Defense for Equal Opportunity, James Render, reported to President Nixon that year that “acute frustration” and “volatile anger” among black servicemembers were driven in large part by lack of equal opportunity and local commanders’ failure to address the problem.30 Others recalling the incidents identified a complete breakdown in understanding between minority enlisted servicemembers and the white officers who led them.31 The shortage of 26. Mario L. Barnes, But Some of (Them) Are Brave: Identity Performance, the Military, and the Dangers of an Integration Success Story, 14 DUKE J. GENDER L. & POL’Y 693, 701 (2007). 27. See id. at 748; see also BINKIN ET AL., supra note 14, at 35–38; Kenneth Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 521 (1991) (“Racial tensions ran high during the Vietnam War, especially in the Army, which had few black officers and was suffering a general decline in discipline and morale.”); Steven Schlossman et al., Potential Insights from Analogous Situations: Integrating Blacks into the U.S. Military, in RAND NAT’L DEF. RESEARCH INST., OFF. OF THE SEC’Y OF DEF., SEXUAL ORIENTATION AND U.S. MILITARY PERSONNEL POLICY: POLICY OPTIONS AND ASSESSMENT 180, 180 (1993) [hereinafter RAND Sexual Orientation Study], available at http://www.rand.org/content/dam /rand/pubs/monograph_reports/2009/RAND_MR323.pdf (“Between 1968 and 1972, all the Armed Forces experienced numerous outbreaks of racial hostility and violence in a worldwide pattern that nearly matched the strife that had existed during World War II.”). 28. NALTY, supra note 14, at 309; see Bryan W. Leach, Race As Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond, 113 YALE L.J. 1093, 1111 (2004). 29. DeFranco, supra note 14, at 22 (citing Frederich J. Harrod, Integration of the Navy, 15 NAVAL INST. PROCEEDINGS 46 (1979)). 30. Id. (citing RICHARD O. HOPE, RACIAL STRIFE IN THE MILITARY: TOWARD THE ELIMINATION OF DISCRIMINATION 39 (1979)). 31. NALTY, supra note 14, at 317 (“Violence and even death proved necessary to drive home the realization that . . . even commanding officers had only the faintest idea what the black man KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 1034 Loyola University Chicago Law Journal [Vol. 45 black officers deprived many enlisted servicemembers of role models, undermining morale.32 The frustration and anger were justified. Studies during the 1970s concluded that, even controlling for test score differences, black servicemembers were more likely to be assigned to combat than technical occupations and were promoted more slowly.33 This crisis, which military and civilian leadership anticipated could become worse in the impending transition to an all-volunteer force, provoked a substantial response. The Defense Department took steps to address the communication failures by establishing “equal opportunity councils” within each major unit to strengthen communication between officers and enlisted servicemembers.34 It ramped up training in race relations and established a Defense Race Relations Institute to oversee the training programs.35 But officials knew these measures would not be enough unless swift progress could also be made toward fuller racial integration, especially in the officer corps. So began the military’s use of affirmative action in earnest, which consisted largely of three components—(1) setting integration goals and carefully tracking progress toward them; (2) race- conscious admissions policies at service academies and Reserve Officers’ Training Corps (“ROTC”) programs; and (3) minority representation on promotion boards. In December 1970, the Defense Department commanded each service to establish goals and timetables for increasing utilization of racial minorities in occupations from which they had been excluded.36 The order warned that officers who failed to act against discrimination would be relieved of command. For their part, service academies increased their enrollment of racial minorities and woman in the service were thinking.”). Lieutenant General Frank Petersen, Jr. described the “time of troubles” this way: In Vietnam, racial tensions reached a point where there was an inability to fight . . . . We were pulling aircraft carriers off line because there was so much internal fighting . . . . Platoons that were 80 percent minority were being led by lieutenants from Yale who had never dealt with ghetto blacks. Maraniss, supra note 22, at A1. 32. See Leach, supra note 28, at 1111 (“The military further surmised that the dearth of black officers had weakened morale by depriving young black servicemen of role models . . . .”); see also U.S. DEP’T OF DEF., REPORT OF THE TASK FORCE ON THE ADMINISTRATION OF MILITARY JUSTICE IN THE ARMED FORCES 57–59 (1972) [hereinafter ADMINISTRATION OF MILITARY JUSTICE], reprinted in 13 BLACKS IN THE UNITED STATES ARMED FORCES: BASIC DOCUMENTS 455, 529–31 (Morris J. MacGregor & Bernard C. Nalty eds., 1977). 33. Butler, supra note 14, at 203 (citing John Sibley Butler, Inequality in the Military, 41 AM. SOC. REV. 807, 818 (1976)); see also ADMINISTRATION OF MILITARY JUSTICE, supra note 32. 34. DeFranco, supra note 14, at 22; see HOPE, supra note 30, at 39. 35. Butler, supra note 14, at 202. 36. HOPE, supra note 30, at 39; DeFranco, supra note 14, at 22. KNOWLES.DOCX (DO NOT DELETE) 4/30/2014 9:35 AM 2014] Affirmative Action and the Military 1035 by making race a factor in admissions,37 and ROTC programs and scholarships were established at historically black colleges.38 The services began to require “minority representation on all officer selection boards.”39 These policies established the basic framework for race-conscious affirmative action in the military that continues today.40 Such measures helped the military rebuild its morale and reputation during the 1980s and, by the time of Gulf War I in 1991, the military was led by a black general, Joint Chiefs Chairman General Colin Powell, and racial incidents were unheard of.41 By 2013, however, it became clear that the military was living through a new and different “time of troubles.” Pervasive gender discrimination and sexual assault and harassment were not leading to riots or shutting down aircraft carriers, but they were causing great damage nonetheless. Army Chief of Staff General Ray Odierno testified to Congress that sexual assault and harassment were “like a cancer within the force—a cancer that left untreated will destroy the fabric of our force.”42 Indeed, sexual assault undermines effectiveness: victims’ trust in the military and productivity are damaged, and talented female recruits are hesitant to join for fear of becoming victims.43 Sexual assault and harassment were publicly recognized as serious problems for the military beginning with the Tailhook Scandal in 1991, when ninety service members alleged they were sexually harassed or 37. Becton Brief, supra note 16, at 18–24 (discussing the identity-conscious policies— including targets and goals—used to ensure opportunities for women and minorities at the service academies); see id. at 25–27 (discussing the same policies for ROTC programs); see also OFFICE OF DEPUTY ASSISTANT SEC’Y OF DEF. FOR EQUAL OPPORTUNITY & SAFETY POLICY, U.S. DEP’T OF DEF., BLACK AMERICANS IN DEFENSE OF OUR NATION 44 (1985) (“The Department of Defense Equal Opportunity Program . . . gave commanders authority to deny on-base access to any organizations . . . that did not practice equal opportunity . . . authorized commanders to impose sanctions when discriminatory treatment toward military members . . . was proven because of race, color, ethnic group or national origin.”). 38. FONER, supra note 14, at 240. 39. Id. at 237. 40. See Robert Knowles & Rachel E. VanLandingham, Affirmative Sir! (And Ma’am): The U.S. Military Needs Affirmative Action Now More Than Ever, NEW REPUBLIC, June 24, 2013, http://www.newrepublic.com/article/113603/affirmative-action-us-military-still-essential. 41. See infra notes 206–08 and accompanying text. 42. Odierno, supra note 11; see U.S. COMM’N ON CIVIL RIGHTS, SEXUAL ASSAULT IN THE MILITARY 161 (Sept. 2013) [hereinafter CIVIL RIGHTS COMM’N REPORT], available at http://www.usccr.gov/pubs/09242013_Statutory_Enforcement_Report_Sexual_Assault_in_the_M ilitary.pdf. 43. See CIVIL RIGHTS COMM’N REPORT, supra note 42, at 3; Michael Martinez, Daughters and Moms Now Consider Rape Before Applying to Military, CNN (June 17, 2013, 6:47 AM), http://www.cnn.com/2013/06/16/us/military-recruitment/.