Defense Department Ordered to Turn Over Documents on Military Sexual Assault

On July 12, 2019, a U.S. District Court in Connecticut rejected multiple Defense Department arguments and ordered the government to disclose key documents related to bias in the military justice system, in a lawsuit brought by Protect our Defenders and the Connecticut Veterans Legal Center. The plaintiffs are represented by the Veterans Legal Service Clinic at Yale Law School.

The litigation, originally filed in December 2017 under the Freedom of Information Act (FOIA), sought to compel the Department of Defense (DOD) to release records related to gender and racial disparities within the military justice system, and to the military record correction boards’ handling of cases involving sexual assault and harassment.

In her opinion, Judge Vanessa Bryant rejected arguments by DOD that the recommendations in a Talking Paper prepared by the Working Group — and the names of the Working Group members and staff — were properly withheld. The Court also ordered DOD to release professional biographies of Staff Judge Advocates, who refer cases to court martial. Judge Bryant also concluded that the government’s search for records related to an Air Force Diversity Working Group — a group that examined racial disparity in the Air Force justice system — “were not reasonably calculated to uncover all responsive materials” and ordered additional searches.

“The District Court affirmed what we’ve been saying all along: the public has a right to know the full extent of the sexual assault epidemic in the military,” said Don Christensen, president of Protect Our Defenders and former chief prosecutor of the Air Force. “The military’s treatment of survivors of sexual trauma should not be a black box. This decision brings us one step closer to pulling back the curtain on the military’s pervasive culture of harassment and discrimination.”

Most publicly available data reveals that discrimination against female service members is widespread. According to the 2018 Service Academy Gender Relations Survey, the prevalence rates of unwanted sexual contact remained the same or increased year-over-year at every military service academy. An estimated 15.8 percent of female cadets and midshipmen experienced unwanted sexual contact. Survivors of MST are additionally more likely to receive a less-than-honorable discharge status due to retaliation or misconduct associated with their trauma, leading them to become ineligible for medical and other critical federal and state benefits that their service merits.

“All Americans — but especially service members — deserve to understand how bias may affect discharge upgrades and military prosecutor’s decisions,” said Margaret Kuzma, Director of Discharge Upgrade Practice at the Connecticut Veterans Legal Center. “The military has historically resisted efforts to curb its scourge of discrimination and retaliation, and this case was no exception. But information is power: these documents will help us realize reforms that will ensure the equal treatment of all service members.”

“The Court recognized that many of the government’s attempts to hide behind exemptions were inappropriate under FOIA,” said Kathryn Pogin ’20, a law student intern with the Veterans Legal Service Clinic. “The public has the right to know the military is failing to live up to its promise of equal treatment to service members and veterans. Transparency is crucial to accountability.”

“Military sexual trauma can irrevocably destroy a survivor’s career in the armed forces,” said Cara Newlon ’21, another Yale Law School student intern. “Americans who have fought and sacrificed for our country frequently experience retaliation and post-traumatic stress disorder after reporting their assault to our military. Veterans don’t need more delays and obfuscation from the government; they deserve answers and immediate reform.”

The Veterans Legal Services Clinic, part of the Jerome N. Frank Legal Services Organization at Yale Law School, represents veterans and organizations like POD and CVLC in national litigation and regulatory and legislative reform efforts.

Protect Our Defenders (POD) is the only national organization solely dedicated to ending the epidemic of rape and sexual assault in the military and to combating a culture of pervasive misogyny, sexual harassment, and retribution against victims. 

Connecticut Veterans Legal Center (CVLC), a legal services organization based in West Haven, works to help Connecticut’s veterans recovering from homelessness and mental illness overcome legal barriers to housing, healthcare and income.