As many as 30 percent of women serving in the military are raped or experience an attempted rape, advocates say.
But relatively little detailed documentation has been made public, and the American Civil Liberties Union of Connecticut and the Service Women’s Action Network, backed by a Yale Law School legal clinic, have had a long-running legal battle with the Department of Defense over access to millions of pages of military records. Their efforts were recently thwarted again by a recent ruling of the U.S. Court of Appeals for the Second Circuit.
Several years ago, the Service Women’s Action Network filed a federal Freedom of Information Act request seeking access to military sexual assault records. When the group felt the DOD didn’t respond in a timely manner, it filed a lawsuit in U.S. district court in New Haven. The late U.S. District Judge Mark Kravitz held that the initial request was unreasonably burdensome and that he could not consider the reasonableness of a later, more limited request because of the insufficiency of the record.
In June, Second Circuit Judges Barrington Parker, Debra Ann Livingston and Christopher Droney said in a short, unpublished opinion that there was no error in the trial court rejecting a review of the ACLU and coplaintiff’s narrowed request. The ACLU and the other parties do not dispute that the initial request was unreasonably burdensome, the panel added.
“The summary order is disappointing because the court, by ruling on our original FOIA request instead of considering our narrowed request, forces us to file another lawsuit based on the narrowed request,” Sandra Staub, legal director of the ACLU of Connecticut, said in a statement. “As a result, the government can continue to stonewall the release of important information on how the military treats sexual assault complaints, a matter of significant public interest.”
A spokesman for the Department of Justice, which is representing the DOD in the matter, declined comment. However, the government said in court papers that as a result of prior litigation, the plaintiffs already received statistical information about sexual violence in the military. This latest request, made in June 2011, was for the individual records underlying the statistical information.
The government claims that the ACLU and Service Women’s Action Network FOIA request encompassed more than 13.6 million pages, and that it would have cost about $4.8 million, and taken 252 work years, to search for and duplicate the requested records. As a result, the ACLU said it offered to accept a random sample consisting of 2 percent of the records originally requested.
The Justice Department argued in court papers that judicial consideration of the modified request would allow the ACLU and the Service Women’s Action Network to unfairly jump ahead of others requesting the records under the FOIA. Instead, federal officials said the plaintiffs should file another request. “Plaintiffs failed to cite any authority for the proposition that a court must consider a FOIA request changed midstream in litigation,” the government’s lawyers said.
The ACLU countered that “considering requests as narrowed during the course of litigation furthers FOIA’s goals of honest and open government” in contrast to the “file-and-litigate, file-and-litigate regime [the Defense Department] and the district court seem to contemplate.”
The ACLU said in court papers that a delay in getting a response to its FOIA request also means the DOD can “continue to hide from public view critical details about rape, sexual assault, and sexual harassment in the armed forces that are crucial to understanding how this epidemic can be cured.”
Of the servicewomen who experience rape or attempted rape, 37 percent have reported being raped multiple times and 14 percent reported that they were gang raped, the plaintiffs said in their court papers.
Lawyers on the ACLU brief included Michael Wishnie, of the Veterans Legal Services Clinic at Yale Law School; D. Zachary Hudson, of Bancroft in Washington, D.C.; and Sandra Park and Lenora Lapidus, of the Women’s Right Project for the ACLU in New York.
Arguing the case for the government were Stuart Delery, principal assistant attorney general, Connecticut U.S. Attorney Deirdre Daly, and Leonard Schaitman and Steve Frank, attorneys on the appellate staff of the Justice Department’s Civil Division.•