National Guard Leadership Grilled by Lawmakers over Sexual Assault Prosecutions

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Lt. Gen. Daniel Hokanson testifies during a SASC nomination hearing
Lt. Gen. Daniel Hokanson testifies during a Senate Armed Services Committee nominations hearing on Capitol Hill, Thursday, June 18, 2020, in Washington. (Chip Somodevilla/Pool via AP)

When a lieutenant colonel in the West Virginia National Guard reported her rape at the hands of a superior officer years after the attack, she was retaliated against by others in her state, Rep. Jackie Speier, D-Calif., recounted Wednesday during a hearing about sexual assault in the National Guard.

The lieutenant colonel's only recourse was through civilian law enforcement, where prosecutors faced issues with an expired statute of limitations. She tried getting help from Army investigators, but their hands were tied because she was on orders under the command of her governor, not the Pentagon, at the time of the attack.

But in a sign of the limited oversight the Guard has over sexual assault in its ranks, Gen. Daniel Hokanson, chief of the National Guard Bureau, told lawmakers at the House Armed Services Committee subpanel hearing when asked about the case that he didn't know whether the woman's alleged assailant still serves in the military.

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Reports of sexual assault in the Guard have skyrocketed over the past decade, with 188 alleged incidents on state duty in 2010 and 634 in 2020, according to Defense Department data. While some experts point to the treatment of women in the military being taken more seriously in recent years, support that might play a role in increased reporting of attacks, the data paints a damning picture of the Guard.

Guardsmen have dueling obligations to both the president and the governors of the states they serve. Troops spend the bulk of their time under state orders, with federal Title 10 orders -- when governors relinquish their control of their forces, generally serving as the mechanism to send troops abroad. The U.S. government provides $26 billion a year to fund National Guard troops in states across the country, but that money brings only limited authority for Pentagon officials.

The West Virginia Guard lieutenant colonel was identified in the hearing, but Military.com is not doing so as the publication has a policy of not publishing the names of sexual assault survivors without their consent. The officer was on state orders when she was attacked, meaning the incident fell outside the jurisdiction of Army investigators.

Unless a Guardsman is working on federal orders, a situation that is fairly rare in most Guard careers, the National Guard Bureau and Pentagon are virtually powerless, lawmakers fear.

While on state orders, where all issues ultimately fall under governors, Guard units have little oversight. In practice, most decisions are ultimately made by state adjutant generals, the senior officers of their states -- giving those commanders broad power that isn't seen in any other parts of the military. In the lieutenant colonel's case, if the state decides against punishing the alleged assailants, there aren't currently a lot of options.

"No longer can the National Guard hide behind their unique status," Speier said as part of her questioning of the Guard’s efforts to combat sexual assault.

Lawmakers took issue with the Guard's seemingly confusing bureaucracy and muddy authority to take action against soldiers who commit crimes within the ranks. Hokanson told lawmakers he believes he has everything he needs to work with states on sexual assault issues, but he gave no details on what tangible authorities he has -- prompting concerns from House members.

"My understanding is your authority is one of encouragement, subtly hoping [states] will do the right thing," Speier said. "But outside of giving them money, we don't have any hook to get them to do what they should do. At what point do we freeze the money? We have no control, no authority to protect those National Guard service members if the state chooses not to."

Confusion over what federal authority the Pentagon or National Guard Bureau can flex culminated in lawsuits from both Texas and Oklahoma against the Biden administration over COVID-19 vaccine mandates ahead of a June 2022 deadline, ordered by the Defense Department, for troops to get the shot. Oklahoma's case was thrown out of court, and senior leaders in Texas are encouraging their troops to get inoculated despite Gov. Greg Abbott's suit, according to a recording of a call between senior leaders obtained by Military.com.

"The [ability for the] National Guard to exert control over the state in a non-federalized status is an ongoing issue of debate," Brig. Gen. Charles Walker, director of the Guard's Office of Complex Investigations, testified during the hearing. "It's the subject of actual litigation as to what the National Guard's authorities are."

-- Steve Beynon can be reached at Steve.Beynon@military.com. Follow him on Twitter @StevenBeynon.

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