Sexual assault and military secrecy

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Chicago Tribune investigative reporter Karisa King called the military the most closed institution that she has ever covered.

Getting information from the armed forces is “like trying to squeeze blood out of a rock,” she said at a panel on covering sexual assault at an Investigative Reporters and Editors conference this summer. “It doesn’t happen. It’s incredibly difficult.”

But after months of digging, King wrote an award-winning series for her previous employer, the San Antonio Express-News, on how the military treats soldiers who report being sexually assaulted. Her articles revealed that victims often are discharged on false claims that they are mentally ill, while offenders are rarely punished.

The military’s handling of sexual assault has sparked reform efforts in Congress, and many journalists in addition to King have written about the topic. These reporters have done so even though the military court system is, by most accounts, harder to navigate and less open than its civilian counterpart.

Journalists on the beat say they are kept out of some public hearings and have difficulty getting military sources to talk or give them records. They say the key to their success is dogged persistence and, oftentimes, the ability to find veterans who are willing to share their stories.

“We didn’t get these stories, on the whole, because we got a ton of support from the military,” said Express-News reporter Sig Christenson, who has written extensively on a sex scandal at Joint Base San Antonio-Lackland and who contributed to King’s series, “Twice Betrayed.”

“We did a lot of this work because victims in particular were willing to come forward and share their stories,” Christenson said. “We owe a lot to them.”

The pretense of public trials

King began her series, which won the American Bar Association’s Silver Gavel Award, by telling of an Army private who reported being sexually assaulted, and was then diagnosed with a personality disorder and removed from service. King used interviews with experts and assault survivors from other branches, as well as thousands of pages of military and medical documents, to help show that such problems are not isolated incidents.

An estimated 26,000 cases of sexual assault occurred in the military in fiscal year 2012, according to a Department of Defense report. Only about 11 percent of these assaults were reported, and less than a tenth of them went to trial. About 60 percent of people who did report incidents said they felt some form of retaliation, according to the study.

Journalists say a key reason it is difficult to get the story behind these numbers is that the military justice system operates separately from the civilian one. It is bound by the Uniform Code of Military Justice and the Manual for Courts-Martial, and does not have the same tradition of access as civilian courts do.

A key feature of the military system is that cases stay within the “chain of command.” The accused is first brought before his or her immediate commander, who decides whether to dismiss the case or move it forward.

Even though two main types of military judicial proceedings – the Article 32 hearing and the court-martial – are presumptively open under the law, reporters are sometimes shut out.

“We have the pretense of public trials, but not the reality,” said Eugene R. Fidell, who teaches military justice at Yale Law School.

Article 32 hearings are common preliminary hearings that are similar to grand jury proceedings. King called them “goldmines for reporters” because victims and witnesses often give lengthy testimony. If there is enough evidence for the case to proceed, the next step is court-martial, which is the military’s version of a civilian criminal trial.

A separate type of hearing, called a non-judicial or administrative proceeding, is not public. (The Reporters Committee for Freedom of the Press has guides with additional background on the military justice system and tips on how to access dockets.)

Bases and branches do not have uniform policies on how they share scheduling details for hearings. Some post calendars online, and others require people to contact a public affairs office. A 2008 white paper by the Reporters Committee revealed that nearly half of the 75 officials reached in a 2007-08 study refused to provide information on upcoming Article 32 hearings. Close to 40 percent did not disclose courts-martial schedules.

Christenson described times when he only heard of Article 32 hearings after the fact, and said the base he covers does not provide charge sheets for these hearings.

Fidell said it is also common for officials to provide scant details about the subject of an upcoming case, or to close parts of proceedings for no good reason. Hearings also can be held in inconvenient locations, such as in tents or aboard ships, or in spots that the public cannot reach due to security.

Moreover, the military does not have a comprehensive database like PACER, which federal civilian courts use. In addition to scheduling information, PACER contains briefs, rulings and other files for current and closed cases.

While people can get records through FOIA, that process can be especially slow in the military as bases do not have standardized procedures for documenting information, said Miranda Petersen, programs and policy director at Protect Our Defenders Foundation, which lobbies for reform on how the military handles sexual assault.

The culture of the military also can present barriers for reporters, Petersen said. Potential sources often keep silent for fear of repercussion.

“It’s not easy to get someone in the military to talk about things that aren’t going very well or to give a personal opinion about how things can be better,” she said.

Going to the source for the story

Still, Petersen said, investigative reporting is crucial so that people can hold the military accountable and push for reform.

Reporters said they often have the best results when they can go to hearings or interview veterans, who can be more willing to talk than current service members.

King recommended that reporters new to the beat sit in on courts-martial and Article 32 hearings to learn the difference between military and civilian systems.

Christenson said he went to about two dozen courts-martial for his stories on the Lackland scandal, in which more than 30 instructors were investigated for sexual misconduct with more than 60 Air Force recruits.

The work was grueling but revealing, he said. The hearings exposed structural problems on the base, such as that training instructors had very little supervision.

Christenson said his attendance was especially important because Lackland did not provide transcripts of proceedings or distribute copies of documents that were entered into evidence.

“Even though these are considered public documents everywhere else, the military acts as if it is a law unto itself, and that’s something that ought to change,” said Christenson, who has covered the military for 17 years.

Reporters also recommended getting story ideas and documents directly from survivors of sexual assault.

King said she would network with potential sources on online support groups for assault survivors.

Advocacy groups, such as Protect Our Defenders, the Service Women’s Action Network, Vet Wow or the Military Rape Crisis Center, can sometimes put journalists in touch with veterans who want to share their stories, she said.

But Washington Post reporter Stephanie McCrummen, who wrote a feature in April on procedures for reporting sexual assault, said she prefers to find sources without an intermediary when possible.

In “The Choice,” McCrummen wrote about restricted reporting, which occurs when a person who alleges assault signs a waiver not to tell certain people. The military, in turn, does not investigate the matter or inform commanders. (In contrast, with unrestricted reporting, the military launches an investigation and notifies commanders of the names of the accused and the victim.)

McCrummen said she had wanted to write about restricted reporting for a while, but had little success getting materials from the military. Instead, she told the story through the experiences of a Navy veteran who has struggled with the weight of her secret after choosing the restricted option.

McCrummen found this source after interviewing about three dozen veterans, many of whom had taken a Washington Post poll about a variety of military-related topics and who said they would be willing to speak with reporters. Initial conversations with the women were off the record, which McCrummen said helped them open up about sensitive topics.

The woman who was featured did not want to be identified in the story, so McCrummen used her middle name, and did not mention the state where she lived and certain other identifying details.

Fighting for records

McCrummen used some medical records that she got directly from her source in her story.

Reporters said getting records through FOIA can be more challenging. They advised people to submit requests as early as possible and to push back if their applications are denied or ignored.

“Expect to play the long game and be very aggressive about it,” King said.

Christenson said journalists must be relentless on FOIA requests and not take no for an answer.

“If somebody says you’re going to have to FOIA that issue, write a FOIA. Send it in,” he said. “While you’re sitting there thinking about that FOIA, think about five other things you can FOIA too.”

“Don’t let up,” Christenson continued. “This is about accountability. They use our money to defend the nation, and they have an obligation to be transparent.”

Pushing for change

Amidst coverage of Lackland and other sexual assault scandals, some politicians have been calling for reform. Sen. Kristen Gillibrand, a Democrat from New York, has been trying to remove the decision on whether to prosecute many crimes from the chain of command. In her bill, the Military Justice Improvement Act, independent military prosecutors would decide if cases moved to trial. The Senate blocked the proposal in March, but reform efforts continue.

Christenson said he wants Congress to pass legislation that would require the military to provide relevant documents, such as charge sheets, quickly and upon request.

And Fidell said the military should get a PACER-like system, so that people can easily see the status of cases and search for records.

Fidell also encouraged reporters to sue if they are denied access to records or proceedings. He said many journalists call him to complain, but do not take their grievance to court.

“It has to be done. Otherwise, the train leaves, the bus leaves without you,” Fidell said. “That’s a good story gone.”