Filmmaker as Prosecutor

December 2, 2015

Prosecutors represent the government’s interests in bringing legal proceedings against defendants in a criminal trial. They lead the investigations of a crime, present evidence, and question witnesses during the trial. Filmmakers who take on this role present information compiled by governments as evidence for the atrocities they have committed and collect their own footage of what remains after the devastation. European filmmakers established this filmmaker role by collecting evidence of the atrocious acts committed by Germany during World War II for use in war crimes trials. Kirby Dick continued this style of filmmaking in The Invisible War (2012) when he investigated the epidemic of rape within the U.S. military.

 

Archival Materials Ensure Authenticity

 

Polish, Yugoslavian, and East German filmmakers easily found evidence of numerous Nazi atrocities in the form of documents, films, and photographs that were left behind. This included film recordings of medical experiments, pogroms, and people being led to the gas houses. Nazis were shockingly meticulous in their record keeping since they were proud of their efforts and wanted credit for their horrifying achievements.

       

Dick also uses archival footage in his films and is credited with successfully applying “the “fair use” doctrine, which holds that copyrighted material may be used without compensation if it’s for purposes of criticism, comment, news reporting, teaching, scholarship or research.” This makes it much easier and affordable for documentary filmmakers to create work that contains clips without “[paying] hefty licensing or release fees” (McNary). In The Invisible War, Dick uses a newsreel of women serving in the U.S. Army during World War Two to establish the kinds of expectations women were expected to fulfill (“The values placed by the Women’s Army Corp on meticulous grooming and feminine grace is one of the first lessons learned by the recruit”), military recruiting commercials from the 1970s, 1980s, and contemporary era that encourage women to sign-up for service while promoting rigidly masculine and individualistic ideals and behaviors that create an unsympathetic environment for victims of sexual assault. Footage of the U.S. Marine Corps Barracks in Washington D.C. explains its history and prestige.


       

WARNING: VIDEO CONTAINS GRAPHIC IMAGES

Majdanek (1944) by Polish Army Film Unit

 

Post-World War Two filmmaker-prosecutors also collected their own evidence by visiting concentration camps. For example, Majdanek (1944), visited an extermination camp in Poland and found terrifying remains---stacked corpses and heaps of human hair, teeth, eyeglasses, and shoes. This footage is now considered archival itself and is part of the Steven Spielberg Film and Video Archive for the United States Holocaust Memorial Museum (History of Majdanek Camp; Survivors). Likewise, Dick goes beyond what he found reported in statistics reported by the U.S. government to interview women and men who survived military sexual assault and learns that most of their lives were nearly ruined by the experience. Kirby thinks that the film’s producer, Amy Ziering, “did a phenomenal job on the interviews with the survivors” because “she […] [got] them to a place where they could not only talk about their experience, but [do it] in the most intimate and revealing way” despite their fears that discussing their assaults would result in “severe reprisals [...] but Amy was able [...] to convey to them that this was an entirely different situation” and as a result “these interviews became the soul of the film” (Bereznak). Archival materials not only ensure authenticity, they also build a strong case for the ideas and concerns being raised in a film.

 

Visual Rhetoric and Building a Case

 

WARNING: VIDEO CONTAINS GRAPHIC IMAGES

Night and Fog (1955) by Alain Resnais

 

French director Alain Resnais directed Night and Fog (1955), ten years after the Auschwitz and Majdanek concentration camps were liberated and it remains one of the most powerful films about the topic. Barnouw describes the film as alternating between “the postcard colors of a post-war tourist world to the black and white staring eyes, the barely stirring skeletons, the line-ups of the naked, and the ovens” (180). The film’s frequent shifts between the beautiful, peaceful present and the horrifying past are shocking and intense to viewers. This imagery is accompanied by powerful narration about Nazi ideology and activities along with commentary on who was responsible for what happened.      

       

Contrasts are also used in The Invisible War. When military sexual assault survivors describe their sexual assaults and the professional retaliation they encountered after reporting, the camera sometimes cuts away from their faces as they are recounting what happened with photographs of their younger, happier, more idealistic days in the military. Dick works in the reverse of what Night and Fog did by pairing the bitter present with the hopeful past to remind viewers that military sexual assault is an ongoing problem. It’s jarring to see women and men from all branches of the service from a variety of backgrounds, military ranks, and jobs continue to feel deeply traumatized and betrayed. These scenes are also paired with commentary on who was responsible for what happened. Journalists, psychiatrists, politicians, military law officers, and other military leaders fill in the rest of the stories told by survivors.   

       

Der Weg nach oben (1950) by Andrew and Annelie Thorndike

 

The married couple filmmaking team of Andrew and Annelie Thorndike most successfully embodied this filmmaking style. They were based in East Germany and searched through the country’s extensive Nazi archive to create powerful films that exposed escaped Nazi criminals and warned of how military and industry leaders could lead Germany to war again. Their techniques doubled as evidence and included identifying and editing archive footage; presenting photo stills, news clippings, and maps; freeze framing, and superimposing arrows to point out important details.  According to Barnouw, the Thorndikes became passionate about archival material and their “concern was to document—not illustrate—their accusations” (178).

      

The Invisible War states at the beginning of the film that “All statistics in this film are from U.S. Government Studies” so that the military can indict itself for its inaction on redressing the topic. To prevent the statistics from being buried, there are opening title sequences that present the information (Over 20% of female veterans have been sexually assaulted while serving) before montages of survivors explaining their shared experiences, interviews with experts, and footage from the daily lives of survivors illustrate the meaning of that statistic. Sometimes the statistics are illustrated with graphs. Amy Herdy, a journalist who wrote the article “Betrayal in the Ranks,” stated that “In 1991 […] Congressional testimony […] estimated that 200,000 women had been sexually assaulted so far in the U.S. military. If you take into account that women don’t report because of the extreme retaliation, and that was more than a decade ago, I would say you could easily double that number and it’s probably near half a million women who have been sexually assaulted in the U.S. military.” That calculation of 200,000 women raped in the military since 1991 is represented by drawings of women’s bodies that stack behind and on top of each other onscreen by year until it gets to the final figure. That visualization is reminiscent of representations of how many soldiers die in wars.

       

The Invisible War, like the Thorndikes, also uses news footage as evidence that the military is not doing enough to combat the sexual predators in their midst. News coverage of these scandals were included in the film: 1) When 200 U.S. Navy servicemen pulled the clothes off of servicewomen attending the Tailhook symposium in 1991 and there was a valley of silence that arose to protect offenders when the incident was being investigated. 2) When 30 women trainees complained of sexual assault at the Army’s Aberdeen Proving Ground in 1996 and it was revealed that women’s initial attackers passed their names onto their commanding officers so that these women could be further abused. 3) When 142 allegations of rape lodged by female Air Force Academy trainees in a ten year period came to light in 2003 and it showed that the highest ranking officials knew but did nothing about it.

 

There is also footage of Secretary of Defense Leon Panetta claiming that he has a zero tolerance policy on military sexual assault and Michael Dominguez, the Department of Defense’s Principal Deputy Under Secretary of Defense for Personnel and Readiness, admitting to a House subcommittee hearing on sexual assault in the military that he told Dr. Kaye Whitley, the former Director of the Defense Department's Sexual Assault Prevention and Response Office, to not attend the hearing because “we wanted to ensure and make the point" that he and his boss, Pentagon personnel chief David S.C. Chu, "are the senior policy officials, accountable to Secretary [Robert] Gates and to the Congress for the department's sexual assault and prevention policies and programs." Dominguez is rebuked onscreen by Rep. Henry Waxman (D-California), the full committee chairman, who says, “That's a ridiculous answer! What is it you're trying to hide? She's the one in charge of dealing with this problem. We wanted to hear from her."

       

Joachim Hellwig, another East German filmmaker, found the people who arrested, deported, and killed Anne Frank and her family and revealed in his film, A Diary for Anne Frank (1959), that they went on to fill powerful West German political positions. While these East German films antagonized West Germans, they also led to the prosecution of Nazi war criminals.

       

The Invisible War doesn’t track down assailants but they are discussed in survivors’ testimonials and updates. Like the Nazis who killed Anne Frank, the sexual predators who attacked people in the film have remained in the government and sometimes gone onto more powerful positions. For example, Kori’s “assailant is still in the Coast Guard,” Elle’s “assailant has recently been promoted to lieutenant colonel.” Jessica’s “assailant is still in the Air Force and was awarded “Airman of the Year” during her rape investigation.” Hannah’s “assailant is still in the military and stationed three hours from her home in Kentucky” and “Kyla’s assailant became a supervisor at a major U.S. corporation and sexually assaulted a female employee. He was never charged and lives in Queens, NY.”

 

It’s infuriating to hear that these men are free to keep attacking people and lead successful professional lives while their victims suffer the trauma of their attacks and the injustice of having their assailants go unpunished. Trina McDonald, a U.S. Navy E-3 Seaman, who was drugged and raped repeatedly starting in 1989 by Naval military police while she was stationed in a remote Naval Operating Station in Alaska, offers a more hopeful perspective on why she came forward even though there are no legal recourses available to her anymore. She says, “I hope this [film] reaches [my assailants][…] I hope they see my face […] and they realize I’m talking about them […] or someone mutters, “Hey, weren’t we stationed with her? […] And then they can’t be a secret anymore. So hopefully they have to deal with it too in some shape, way, or form.”

 

All of these techniques present a powerful case for taking action on the issue of military sexual assault  because they present strong characters that viewers connect with emotionally, reveal research on an underreported topic, invite experts to explain the severe personal and national costs to not addressing the topic, and challenge military officials to respond.

 

The Invisible War: Continuing the Filmmaker as Prosecutor Legacy

 

 

Kirby Dick (director) and Amy Ziering (producer) were inspired to make The Invisible War after reading "The Private War of Women Soldiers," an article written by Helen Benedict in 2007 that exposed the epidemic of military sexual assault, which has occurred since World War Two, the beginning of when American women signed-up for military service. (The Invisible War - Discussion and Resource Guide). Dick says that the film “was actually made in some ways for two disparate audiences. One is a film audience. But it was also made for a very narrow group of people, a few hundred policymakers in Washington, D.C. So I had to structure the film, or approach the film, in such a way that it would operate successfully in both arenas” (Rohter). Subsequently, the filmmakers connected with over 150 veterans and about a dozen of them appeared in the film, which makes it hard to deny that military sexual assault is a systemic problem that affects every branch of the armed forces.

 

Dick points out that it was only possible to work with veterans because “if you’re in the military, you can’t speak to the press or you’ll be court-martialed.” He adds that “his team pursued leads very early in the filmmaking process and was only able to secure a series of high-level interviews in the Pentagon after much persistence” (The Invisible War - Discussion and Resource Guide). This demonstrates the filmmakers’ commitment in trying to get answers from top officials, even though their responses were insufficient or uninformed. Since the military’s policies prevented them from visiting bases to collect cinéma vérité footage, they relied on interviews with survivors, experts, and officials to create a compelling story and lend credibility to the film’s claims (Bereznak).

 

Furthermore, Dick thinks that the talking-head interviews used in The Invisible War were powerful in part because viewers “realize it’s a systemic problem […] This isn’t about four or five or six perpetrators. This is about four or five or six thousand perpetrators, maybe more, and the fact they are not being dealt with” (Rohter). The decision to focus on sexual misconduct at the Marine Barracks, in Washington, D.C. would also hit close to home for politicians since they have likely attended Marine Barracks’ headquarters, ceremonies and celebrations. And if they didn’t, the names and/or addresses of these places are included in the film through cutaway camera shots and archival footage.

 

Reforms Made After The Invisible War

 

The conversation with policymakers about military sexual assault was framed as a bi-partisan and anti-assault issue, not an anti-military issue. As a result, it led to bi-partisan sponsorship of legislation, policy changes in the U.S. Department of Defense, pending Federal legislation, and inspired over 30 Congressional reforms. After premiering at the Sundance Film Festival in January of 2012, the film was screened the next three months (before the film was publicly released) to leaders at the Pentagon, Congress, and Department of Defense around answering the question “What can we do about military sexual assault?” The outcomes of these post-screening conversations with top officials were:

 

  • For the first time in 30 years, General Mark A. Welsh, Chief of Staff of the Air Force, flew all AF Wing Commanders from bases around the world back to the Pentagon where they watched The Invisible War (Bereznak).

 

  • Marine Corps Commandant General James F. Amos released a new plan to prevent sexual assault in 2012 after meeting with all non-deployed Marine generals to review the new procedures, which seek to discourage unsafe environments while increasing reporting. However some of the female Marines who appeared in The Invisible War are skeptical. Ariana Klay, who survived a gang rape while serving at Marine Barracks Washington, said that even though she’s glad to see “an acknowledgement of some of the circumstances that allow assaults to happen, [her] gut feeling is that it is just more lip service on the issue.” Anu Bhagwati, the executive director of Service Women’s Action Network who is also a former Marine officer, is “[worried] that language in the plan and training that focuses on alcohol and “high-risk situations” will only encourage more victim-blaming” and that truly ending sexual assault and harassment will only occur when “commanders...take a fierce approach and “crush” offenders instead of ignoring reports and promoting alleged attackers.” (Hlad).

 

  • U.S. Senator Barbara Boxer credits The Invisible War with enabling her to pass an amendment that would codify “banning anyone convicted of a felony sex crime from joining [the US] armed forces” into law (Congress Passes Boxer Measure to Keep Sex Offenders Out of the Military).

 

  • President Barack Obama vowed to “end the scourge” of military sexual assault by including “an entire subsection on improving sexual assault prevention and response in the Armed Forces” when he signed the National Defense Authorization Act for Fiscal Year 2013. (National Defense Authorization Act for Fiscal Year 2013 Wrap-Up).

 

Highlights include:

    • better training and education for commanders in creating environments that do not tolerate sexual assault and in responding to complaints of sexual assault.

    • improved reporting on how sexual assault (prevention, training, investigation, and prosecution) is reported.

 

    • active duty retention of sexual assault survivors so their cases can be investigated, prosecuted, and be eligible for care.

 

    • Every Armed Forces commander is required to complete climate surveys to determine the prevalence of sexual assault in their units and measure the standards of prevention and prosecution fostered under the leadership of each commander.

 

    • Mandatory administrative separation or dismissal for any Armed Services member convicted of sexual assaulted or related crimes;

 

    • Increased efforts to publicize resources for survivors to report and respond to sexual assault.

 

    • Preventing professional retaliation against survivors by requiring special processing for investigations and dismissal of service members who have reported sexual assault.

 

    • Immediate correction of military records for survivors who face retaliatory personnel action after reporting their assault.

 

    • Improved record keeping standards for sexual assault cases, including record retention, documentation of evidence, and integration of the records into DoD databases.

 

    • Establishing comprehensive special victims units, comprised of personnel specifically trained to investigate and prosecute instances of sexual assault: investigators, judge advocates, victim witness assistance personnel, and administrative paralegal support.

 

    • Establishing regular reporting to measure the efficacy of these special victims units.  

 

    • Enhanced training of all new service members (in addition to commanders at all levels) at the time of enlistment.

 

    • Improved record keeping for cases of military sexual assault, including reporting on reasons for dismissing cases and histories of accused service members.

 

    • Establishing two committees tasked with measuring, analyzing, and recommending improvements for the military response systems and judicial proceedings of sexual assault in the Armed Forces.

 

  • In 2013, Senator Gillibrand introduced the Military Justice Improvement Act, which would require military sexual assault cases to be handled by an independent judiciary body, however it failed to secure enough votes to break a filibuster in 2014. NPR reports that "The Pentagon's leadership vigorously opposed the measure, arguing that officers should have more responsibility, not less, for the conduct of the men and women they lead." (Neuman).

 

  • “Perhaps one of the most satisfying outcomes has been that the filmmakers ultimately licensed the film as a training tool on military sexual assault to be shown at individual military bases around the world” (Bereznak).

 

Update on Cioca v. Rumsfeld

 

As seen in the film, Cioca and 16 other survivors of military sexual assault sued two Secretaries of Defense (Robert Gates, and Donald Rumsfeld) and the Department of Defense claiming that their constitutional-rights were violated when they were not protected from retaliation after reporting their sexual assault cases to their commanders. However, when their class action civil suit was dismissed in federal court in December 2011 the judge ruled that “the military cannot be sued by current or former soldiers for injuries incurred in the armed forces, including sexual assaults.”

 

The conclusion was that military sexual assault is an "occupational hazard," not a crime (Judge Dismisses ‘Epidemic’ of Rape in Military Case). Susan Burke, the lawyer who represented these service women in Cioca v. Rumsfeld, thinks that “if lawsuits were permitted […] [it] would create an institutional deterrent that would ameliorate the underreporting and under-prosecuting of cases” (Documentary Film 'The Invisible War' Takes on Military Sexual Assault 'epidemic’). An appeal has been filed to overturn the dismissal and 400 other military sexual assault survivors have come forward to participate in future lawsuits. (Judge Dismisses ‘Epidemic’ of Rape in Military Case).

 

Subsequently, Burke is “[representing] 48 plaintiffs in three different complaints that seek to give service members the right to sue the military for civil damages related to sexual assault” (Documentary Film 'The Invisible War' Takes on Military Sexual Assault 'epidemic’). She “has filed for more cases in different jurisdictions, and […] is hoping that one or more of them is actually heard by a court and moved up the judicial system to the Supreme Court. Burke eventually hopes the Supreme Court revisits its decision. It’s a long shot, but what it does [...] is [...] [introduce] all this testimony and evidence into our court system” (Breezing). Cioca, the lead plaintiff in the case, remains hopeful that “something good will come from this...Even if it doesn’t go to trial, it has spread awareness and made a lot of changes” (Judge Dismisses ‘Epidemic’ of Rape in Military Case).

 

Conclusion

 

Filmmaker-prosecutors use film as a vehicle for facilitating justice. They do the same things a lawyer does: they select an issue to work on, conduct extensive research and interviews, pick the most compelling stories to illustrate your points, present other pieces of evidence, and be clear about what kind of punishment and/or reform you want. Kirby Dick builds a strong case in The Invisible War for how military sexual assault is an insidious problem that destroys individuals and the U.S. military’s strength and credibility. At the end of the film we see a title card announcing that “Secretary of Defense Leon Panetta watched the film. Two days later, he took the decision to prosecute away from unit commanders.” It’s a step in the right direction but it’s on a very long road to resolution of this matter.

 

The film also raises larger and even more troubling questions about how ignoring this problem damages American society and how the nation is viewed by the rest of the world. How effective is the U.S. military at “serving and protecting” if such destructive and criminal behavior is not only tolerated, but often awarded? How can American women have successful military careers if the institution is accepting and promoting rapists? Are sexual aggressors drawn to the military because it’s easier to get away with rape? If the U.S. military can’t protect its own members from each other, how are these predatory soldiers behaving when they are serving in other nations? Could preventing, apprehending, and adjudicating cases of military sexual assault decrease the sexual violence committed by U.S. soldiers in other countries, often in the “brothels, bars and nightclubs surrounding U.S. military bases” that have been sanctioned by the U.S. government and the countries they occupy? (Film Description: The Women Outside).

 

The Women Outside: Korean Women and the U.S. Military (1996) by J.T. Takagi & Hye Jung Park

 

The Invisible War is one of the most successful examples of filmmaker-as-prosecutor projects because it led to numerous reforms very quickly after it was released. This was possible because the film team was very strategic. They raised $40,000 to support a big premiere at the Sundance Film Festival in January of 2012 so it could be viewed as a serious and reputable film when they spent the next three months screening it to military and political leaders. That means that by the time the film would be released in the theaters reviews of The Invisible War would include how the government had already responded to the film’s concerns, which brings the seriousness of the subject to the public’s consciousness and would hopefully compel them to lobby their political representatives to keep taking action on the issue (Case Study: The Invisible War).

 

The filmmakers also created NotInvisible.org and announced it at the end of the film as a place to find updates, petitions, and other calls to action around ending military sexual assault and supporting survivors. Clearly, filmmakers who want their projects to make as significant an impact as The Invisible War did will have to engage in the same type of early relationship-building and long-term strategizing that this film team practiced. Filmmaker-prosecutors must look beyond cultivating the film’s aesthetics, though it is an important element of their work, to identify what will best serve the issues they cover.

 

 

 

Works Cited

 

Barnouw, Erik. "Prosecutor." Documentary: a history of the non-fiction film. 2nd rev. ed. New York: Oxford University Press, 1993. 172-182. Print.

 

Bereznak, Alyssa. "The Makers of Military-Rape Documentary The Invisible War on How Winning an Oscar Could Help Change Military Policies." Vanity Fair. Vanity Fair, 15 Feb. 2013. Web. 23 Nov. 2015. <http://www.vanityfair.com/culture/2013/02/invisible-war-oscar-nominated-documentary>.   

 

"Case Study: The Invisible War.” Film Independent. Film Independent, 1 Dec. 2013. Web. 30 Nov. 2015. <http://www.filmindependent.org/resources/case-studies/case-study-the-invisible-war/#.VlxAsd-rSRu>.  

 

"Documentary Film 'The Invisible War' Takes on Military Sexual Assault 'epidemic'" NBC News. NBC News, 21 June 2012. Web. 30 Nov. 2015. <http://usnews.nbcnews.com/_news/2012/06/21/12304042-documentary-film-the-invisible-war-takes-on-military-sexual-assault-epidemic?lite>.  

 

"Film Description: The Women Outside." POV: Documentaries with a Point of View. PBS, 1 May 1996. Web. 30 Nov. 2015. <http://www.pbs.org/pov/thewomenoutside/film_description.php>.  

 

"History of Majdanek Camp; Survivors." United States Holocaust Memorial Museum. United States Holocaust Memorial Council, 1 June 2004. Web. 28 Nov. 2015. <http://www.ushmm.org/online/film/display/detail.php?file_num=4630>.  

 

The Invisible War. Dir. Kirby Dick. U.S. RELEASE, 2012. Film.

 

"The Invisible War - Discussion and Resource Guide." Seattle University. The Invisible War, 2012. Web. 28 Nov. 2015. <www.seattleu.edu/WorkArea/Download/Asset.aspx?id=136950>.  

 

McNary, Dave. "Insurance for Documentary 'fair Use'" Variety. Variety, 22 Feb. 2007. Web. 28 Nov. 2015. <http://variety.com/2007/film/markets-festivals/insurance-for-documentary-fair-use-1117960027/>.  

 

Rainer, Peter. "The Invisible War: Movie Review." The Christian Science Monitor. The Christian Science Monitor, 27 June 2012. Web. 28 Nov. 2015. <http://www.csmonitor.com/The-Culture/Movies/2012/0627/The-Invisible-War-movie-review>.  

 

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