As President Joe Biden announces major reforms to how the military prosecutes sexual assault, the U.S. Navy is still shrouding those court proceedings in secrecy and fighting a ProPublica lawsuit to make such cases public.
Last month, Biden issued an executive order that finalized a mandate from Congress to drastically change who had authority over sexual assault and murder cases in the military. The order strips military commanders of the power to press charges or drop a case. Instead, a special military prosecutor will make the decision.
The administration, calling it the most significant change to the military’s justice system in more than 70 years, said that in part the changes would “better protect victims and promote fairness before, during and after court-martial proceedings.”
Yet, the Navy’s policy is to withhold court records from the public throughout most, if not all, of those proceedings, preventing independent scrutiny into how sexual assault cases are prosecuted. What happens in the crucial period before a court-martial is never made public by the Navy. The public doesn’t even know if a sailor or Marine has been charged with a crime unless the case goes to trial. The Navy provides no notice of when the service is holding an Article 32 hearing, which determines if there’s enough evidence for trial. And the related pretrial records are concealed permanently.
That critical preliminary stage of a case is precisely what prompted the change to the Uniform Code of Military Justice. In the prior system, a service member’s commander had the discretion to decide whether claims of assault deserved legal action. As reports of sexual assault in the military grew, a bipartisan group of lawmakers criticized the military’s low prosecution rate, placing the blame squarely on commanders. Advocates said commanders were too willing to dismiss allegations.
Under the Navy’s records policy, the public won’t be able to discern if the new special prosecutors are handling cases any differently.
ProPublica sued the Navy last year for refusing to release court records in a high-profile arson case. In 2020, the USS Bonhomme Richard, a $1 billion amphibious assault ship, burned for more than four days and was destroyed. A ProPublica investigation showed the Navy prosecuted a sailor with scant evidence and ignored a judge’s recommendation to drop the case.
The ongoing lawsuit in the Mays case is currently challenging the Navy’s overall policy to keep most records and pretrial hearings secret. Congress has repeatedly made clear that the armed services must comply with the principle of public access to courts “and provide greater transparency, but the Navy has refused to do so,” ProPublica’s lawsuit states.
The Navy said it is in the process of updating its records rules and has asked the court to partially dismiss ProPublica’s lawsuit. ProPublica opposed that motion in July.
However, the new rules will be based on Pentagon guidance released this year, which endorsed most of the Navy’s current policies. In January, Caroline Krass, general counsel for the Defense Department, issued guidance to officials from the six military branches about a 2016 law that required transparency.
The guidance tells the services they do not have to make any records public until after a trial ends. It gives the military the discretion to suppress key trial information, such as transcripts and exhibits. And in cases where the defendant is found not guilty, the military services will be allowed to keep the entire record secret permanently, preventing any review of how those cases are handled.
ProPublica’s lawsuit challenges the legality of the guidance.
“Congress mandated transparency from our military to make certain that crimes like sexual assault don’t fester in secrecy as they have for years. But the Navy rejected this law,” Sarah Matthews, ProPublica’s deputy general counsel, said. “It keeps even heinous criminal accusations under wraps except in the rarest of circumstances, something that the law, and the First Amendment, cannot tolerate.”
Since the Pentagon guidance has been released, ProPublica has requested court documents from the Navy in 70 active sexual assault cases, including ones involving rape and sexual assault of a child, as well as three homicides. ProPublica also requested records for active sexual assault cases not listed on the public docket but received none. The Navy told ProPublica in March the requests were being considered in light of the new guidance. Little seems to have changed.
Of the sexual assault cases, ProPublica has received limited records from just 14 — and only after they were closed. The Navy released limited records in two of the homicide cases. The Navy will not release court transcripts, exhibits or any pretrial records. In federal and state courts, those records are almost always public except in narrow circumstances.
Throughout the lawsuit, and as recently as April, the Navy has cited the federal Privacy Act as a reason the service can’t release court records to ProPublica. Yet, in 2021, the Pentagon issued a public notice saying that due to Congress’ mandate for transparency, the Privacy Act did not prevent the disclosure of military court records.
This led the staff of the Military Justice Review Panel, an independent body created by Congress, to conclude in a research paper that the rules are “inconsistent with the disclosure requirements of the law.”
The court has not yet ruled on the Navy’s motion to dismiss ProPublica’s suit. The service said its new rules will be issued by Sept. 14.