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Pentagon Says Uncovering the Truth about Military Sexual Violence Is Too Burdensome. Huh?

Sandra Park,
Former Senior Staff Attorney,
ACLU Women's Rights Project
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May 29, 2014

It's often said that people should be judged by their actions, not merely their words. The same is true of institutions, even the Department of Defense (DoD).

Facing intense criticism for how it responds to sexual violence within the military, the Pentagon has said: "Sexual Assault is a crime that is not tolerated, condoned, or ignored in the DoD. It is one of the most serious challenges facing our military."

Yet, in Freedom of Information Act (FOIA) litigation that has now been pending for three years, the Pentagon argues that releasing its records regarding military sexual violence is too "burdensome," because it involves a large number of documents. But that raises more questions than it answers: Doesn't the volume of documents only confirm the magnitude of sexual assault in the military? Why is the DoD opposing efforts to shed further light on military sexual violence, a necessary step to creating effective solutions?

In 2010 and 2011, the Service Women's Action Network, the ACLU, and the ACLU of Connecticut filed FOIA requests with the DoD and the Department of Veterans Affairs (VA), seeking documents relating to sexual violence, harassment, and domestic violence in the military. We wanted to fully understand how DoD commanders and the military justice system deal with complaints and how the VA treats disability claims submitted by veteran survivors. Ultimately, our goal was to share what we learned with the public and to craft meaningful reforms based on those insights.

Initially, we got little response to our requests.

After filing two lawsuits against the DoD and VA, we reached a settlement with the VA, resulting in the production of a number of documents. Battle for Benefits, the report issued by the ACLU and SWAN in November with the Yale Law School Veterans Legal Services Clinic, drew on those records to illuminate the VA's discriminatory treatment of disability claims based on military sexual trauma. The report concluded that disability claims based on PTSD related to military sexual trauma were granted at a significantly lower rate than other disability claims. It also found VA regional offices treated these claims inconsistently. It included several policy recommendations for the VA that have been picked up by Congress.

But the litigation with the Pentagon remains ongoing, because it states that too many records would need to be turned over. We responded by narrowing our requests once we were able to determine which documents contain useful information on how the DoD deals with these cases, but it still will not comply with our requests.

More fundamentally, the Pentagon fails to recognize that the volume of records it possesses relating to sexual violence is simply a sign of the appalling rates of violence within the military. Its position is particularly disturbing because it would justify refusing to comply with FOIA whenever the request would expose deep-seated and widespread abuses within our government – the very point of the law.

Tomorrow the U.S. Court of Appeals for the Second Circuit will hear oral arguments in New York on whether the Pentagon can avoid releasing these records. Rather than seeing disclosure as a burden, the Pentagon should work with advocates to expose, and address, "one of the most serious challenges facing our military."

Simple justice and good government demand it.

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