Because he is the problem.
It is critical that the U.S. Merchant Marine Academy have well-defined procedures for assisting victims of sexual assault/sexual harassment (“SASH”). Victims need to know where and how they can seek help. They must know that the help they need will be readily provided to them in a manner that treats them with dignity and with the utmost protection of their privacy. Further, if a midshipman-victim also wants action taken against the offender, it is essential that the Academy have appropriate procedures for investigating the allegations in a manner that protects the victim while simultaneously providing the accused with due process.
Few people realize that providing due process to the accused is an important safeguard for the victim: Imagine the additional trauma inflicted upon a sexual assault victim who is brave enough to come forward to confront his/her attacker – only to have the case dismissed on a technicality because the Academy failed to follow procedures that protect the accused.
But, having good procedures is only half of the equation. The best procedures are of no value if they are not followed. Or, to put it in terms of the Academy motto, words are useless if they are not matched by deeds. If midshipmen don’t have confidence in the procedures and that the procedures will be followed, they will be reluctant to report SASH.
During the five years of Superintendent Helis’ tenure, under-reporting of SASH at the Academy has been a major problem. Helis has proven unable to solve the problem. The reason under-reporting persists is simple: Midshipmen don’t trust Helis because he is a loose cannon*** who acts in arbitrary and capricious ways. Helis doesn’t follow the Academy’s own SASH procedures – even though he promulgated those procedures. Helis acts arbitrarily: where there are rules, he doesn’t follow them; if there are no rules, he makes them up as he goes along. As a result, midshipmen have no confidence that they will be appropriately protected if they report SASH, and the under-reporting problem persists.
The midshipmen don’t trust Helis to protect them — with good reason. The ongoing saga of the seven senior midshipmen soccer team members who have not yet been handed their diplomas is a prime example of the problem. We still don’t know the nature of the alleged incident involving the soccer team. That incident should have been properly and fairly investigated; with appropriate punishment doled out if an investigation revealed that punishment was warranted. But the fact that the Academy is dealing – in summer 2017 — with an event that occurred on or about September 3, 2016 is itself an indictment of Helis’ failure to follow the SASH procedures that he implemented.
But wait, it gets worse.
As I will detail in this post, the problem is far worse than only a delayed investigation. In order to explain how much worse, I must first explain a few of the Academy’s procedures and how they are supposed to work. I will then prove that Helis has ignored these procedures.
A. SASH policy and procedures
Helis established the Academy’s procedure for addressing SASH in Superintendent Instruction 2016-02. That procedure creates two different ways that SASH incidents are reported and handled: restricted reports and unrestricted reports.
Restricted Report: The restricted report is designed to overcome reluctance to report. It allows the midshipman-victim to make a private, confidential, report without any adverse consequences; and by doing so, the full range of support services (medical, psychological, etc.) are made available to the victim with, in essence, “no questions asked.” The making of a restricted report also allows for the development and preservation of crucial evidence in the immediate aftermath of a SASH incident; this evidence is held in confidence but is then available if the victim later decides to pursue disciplinary action against the perpetrator.
Consistent with the overriding purpose of a restricted report, the report is confidential and there are only a select few individuals at the Academy who are authorized to receive such reports. Critically, a restricted report does not trigger the official investigative process. There is no procedure for the Academy’s Sexual Assault Response Coordinator (“SARC”) to report the details of a restricted report to the Administration. Again, the idea is to get the victim help and protect his/her privacy.
Unrestricted Report: In contrast, while the unrestricted report also provides for the victim to get immediate help, it also includes the initiation of an investigation and the potential initiation of disciplinary proceedings against the offender. Because the unrestricted report will trigger an official investigation, the SARC is responsible for “notifying the appropriate law enforcement personnel and the Academy staff responsible for the administrative investigation.”
The two different types of reports address two important, and sometimes conflicting, concerns: (1) ensure that the victim gets immediate and ongoing support and (2) discipline the perpetrator of the SASH.
The primary and overriding concern must be to get the victim the help that s/he needs. Victims are often reluctant to come forward and the reasons for this reluctance vary. They may fear embarrassment or retribution; and it is not uncommon for the victim to have a personal relationship with the perpetrator that makes it difficult for the victim to embark upon a course of action that could lead to adverse consequences for the perpetrator. Thus, the creation of the restricted report process quite appropriately makes the immediate needs of the victim the highest priority.
A midshipman who makes a restricted report can decide at a later date to make an unrestricted report. If so, the evidence preserved as part of the creation of the restricted report is available in the official investigation.
Superintendent Instruction 2016-02 also sets out the rights of the victim and the accused when an unrestricted report is made. Two of those procedures have particular relevance to this post. First, both the victim and the accused have “The right to have a disciplinary process [i.e. the Academy’s regimental demerit system] run concurrently with a criminal justice investigation . . .” Second, both the victim and the accused have “The right to an investigation and disciplinary process conducted in a manner that recognizes the legal and policy requirements of due process and is not conducted by individuals with a conflict of interest.”
B. The deferred graduation policy
A second relevant policy is the Academy’s deferred graduation policy, which was promulgated via Superintendent Instruction 2011-06. This policy allows the Superintendent to defer a midshipman’s graduation for academic, medical, or regimental (i.e. disciplinary) reasons. The policy for deferring graduation for disciplinary reasons only applies to students who have “not satisfactorily completed all regimental requirements by graduation day.” It does not apply to a situation where a midshipman has satisfactorily completed all regimental requirements but is being investigated for a possible violation of midshipman regulations — the exact scenario confronting the seven senior midshipmen soccer team members.
C. The DOT Office of Inspector General’s policy for conducting investigations that overlap with the Academy’s investigations
The DOT’s Office of Inspector General (“OIG”) is charged with investigating crimes occurring within the Department of Transportation, including at the Academy. At times, an OIG investigation will overlap with an investigation being conducted by the Academy. The DOT has established a policy that in such cases, the OIG may request the Academy to defer its investigation until the OIG investigation is completed. The Academy is not required to comply with such a request.
A. Information from Helis’ sworn declaration
The seven senior soccer team players have instituted litigation against Helis and the Academy for allegedly denying them of their property or liberty interests without “due process” under the law. The right to due process is established by the Fifth Amendment to the U.S. Constitution. A fundamental aspect of due process is the right to have notice of the charges the government is bringing against you and a meaningful opportunity to contest those charges (an opportunity “to be heard”). In the course of that litigation, Helis submitted a sworn declaration, subject to the penalties of perjury, asserting the following:
- There was an incident of alleged “sexual misconduct” on a soccer team bus in route to an away game in September 2016.
- OIG commenced an investigation into the incident on or about February 14, 2017 and it was only at that time that the Academy learned “from unrestricted sources” of the incident.
- Helis considers the allegations “serious” enough that “even if” criminal charges are not brought, one or more of the midshipmen could face discipline under the Academy’s SASH policy (Superintendent Instruction 2016-02).
- Helis made a “deliberate decision” to not inform the seven senior midshipmen that he had decided to place them on deferred graduation status. It is not clear exactly when this decision was made, but Helis indicates that it was at least before license exams commenced (May 30, 2017). Helis’ declaration is ambiguous as to how early he made the decision. It is possible that the decision was made as early as February 2017 when Helis learned of the OIG investigation.
- Helis states that the Academy received a written request (of unknown date) from the OIG requesting that the Academy defer any investigation pending the completion of OIG’s investigation and that he acceded to that request in accordance with the OIG’s policy.
B. Information from other sources
I have received information from a variety of confidential sources regarding the incident in question. These sources include people who have knowledge of the questions asked by the OIG investigators as part of their investigation. Based upon all of these sources, I think it is safe to say that the incident in question occurred on the way to the September 4, 2016 John Hopkins game in Baltimore, MD. This conclusion is consistent with Helis’ declaration.
I have also learned that Helis investigated this incident in either October or November 2016. This is based upon reports of people who have knowledge that individuals were interviewed as part of the investigation during that time frame. Such an investigation should only have occurred, however, if an unrestricted report was made by the alleged victim.
As of a court hearing held on July 6, 2017, the seven midshipmen still did not know what they were accused of, prompting the judge to ask the Academy attorneys, “Did you ever hear of the United States Constitution?” When a judge asks a question like that, it’s a pretty good indication that proper procedures aren’t being followed.
Analysis of the due process violations
As the judge’s question suggests, the most evident due process violation is the failure to inform the midshipmen of the charges against them. While there may be no requirement to provide notice during an investigation, Helis’ decision to defer the midshipmen’s graduation pending an investigation raises very serious due process concerns. In other words, Helis could investigate without giving notice as long as he didn’t also take adverse action against the midshipmen.
Helis attempted to get around this due process issue in his declaration by claiming that deferred graduation status is not a “punishment.” (Anyone who has attended a federal academy would consider it ridiculous to assert that deferring graduation is not a punishment. That would be like saying winning the gold at the Olympics but being deprived of the opportunity to step up on the podium and receive your gold medal is not a punishment. Apparently Helis and the Academy’s lawyers think this argument might persuade the judge.) Even if it is not punishment, however, the argument fails. Because, the due process clause is not focused solely upon punishment – it applies to any deprivation of life, liberty or property. For example, the government cannot imprison someone simply because it suspects the person committed a crime and wants to prevent him from absconding before the investigation is complete. Instead, due process requires that the government appear before a judicial officer and show that it has “probable cause” to arrest and obtain an arrest warrant. The warrant puts the accused on notice of the allegations against him and he is entitled to a prompt hearing before the judicial officer to challenge the warrant.
Deferred graduation status is obviously not as serious as an arrest; but it has serious implications for the midshipmen, at least one of whom had a job offer that required him to report to work in July. The loss of employment has been recognized by the courts as a property right protected by the Fifth Amendment. Thus, there is a strong case to be made that Helis’ placement of the midshipmen on deferred graduation status without notice and without an opportunity for, at a minimum, a prompt, post-decision, hearing to challenge the decision was a denial of their due process rights.
But wait, it gets worse.
To compound the significant question about the procedure for placing midshipmen on deferred graduation status, Helis is misusing the deferred graduation status procedure. The policy for deferring graduation for disciplinary reasons (as opposed to academic or medical reasons) only applies to students who have “not satisfactorily completed all regimental requirements by graduation day.” It simply does not apply to a situation where a midshipman has satisfactorily completed all regimental requirements but is being investigated for a possible violation. In other words, it only applies after the midshipman has been found to have violated a regimental requirement.
Due process under our constitution is all about following procedure. If the government doesn’t have a procedure in place, it doesn’t get to make something up on an ad hoc basis to address its own failure to have a procedure. That’s the kind of thing you expect from Henry the VIII’s Star Chamber; and the Due Process Clause was added to the Constitution expressly for the purposes of avoiding Star Chamber-type procedures where rules do not exist and are made up to suit the circumstances (and generally to ensure that the king gets the result he desires). (Certainly, the Academy should have some rule to address last minute disciplinary issues. For example, what if a senior punched the commandant the night before graduation? The fact is, however, that at present, the Academy has no such procedure in place and seven midshipmen had their constitutional rights trampled upon by Helis.)
But wait, it gets even worse.
Helis’ sworn declaration states that the soccer team incident involves allegations of sexual misconduct. But, that same declaration contains clear and unequivocal evidence that Helis is violating the USMMA policy for dealing with SASH – a policy that he himself established. Helis states that he elected not to investigate the incident contemporaneously with the OIG investigation because he received a written request from OIG to defer his investigation until OIG completed its investigation. Note that this is a “request” and OIG has no authority to prevent the Academy from initiating or continuing its investigation. On the other hand, the Academy SASH policy gives both the victim and the accused the right to have the Academy investigation proceed contemporaneously with any criminal investigation (such as the OIG investigation). By unilaterally deciding to defer his investigation, Helis deprived both the victim and the accused of their right to have a contemporaneous investigation. Helis had no authority to deprive them of that right.
Helis explains in his declaration that his decision to not notify the accused midshipmen of the investigation was “deliberate”:
I made a deliberate decision to allow the Plaintiffs to complete the term and take their USCG license exam to expressly insure that, when and if it was determined that they had not engaged in any criminal activity or violated any Academy rules and regulations that would warrant discipline, they could immediately be issued their diplomas and their USCG licenses. I also made a deliberate decision to hold off informing the Plaintiffs that they were being placed on deferred graduate status until after they had taken the USCG license exam so as to not impede their studies. On June 2, 2017, upon completion of their required course of study and USCG license exam, I placed Plaintiffs in deferred graduate status.
Helis denied the midshipmen their right to a concurrent investigation without even notifying them of the investigation and giving them the opportunity to exercise their right. And while Helis does not indicate whether he notified the victim of his decision to defer the investigation, it seems likely that he deprived the victim of his right to a concurrent investigation as well. The arbitrary, mercurial, and self-exonerating nature of Helis’ thought process is, frankly, astonishing — even though we’ve seen it before. Helis is trying to justify his failure to provide the seven midshipmen with the rights that he established for them by making it sound like he did it out of concern for their best interests. With friends like that, who needs enemies?
But wait it gets worse. Much worse.
In his declaration, Helis swears that he first learned of the incident “from unrestricted sources” sometime in early February 2017. This suggests that Helis knew of the incident from a restricted report made by the victim before February 2017. This is consistent with the reports I have received that several soccer team members were interviewed about the incident as part of an investigation conducted by Helis in the fall of 2016.
The problem is that if a restricted report was made in fall 2016, then Helis had no business investigating it at that time. While he would have been informed at that time that a restricted report had been made, there is no provision in the SASH procedure for him to be notified of the details of a restricted report. It goes against the very nature of the restricted report policy for such information to be shared with anyone beyond the SARC. Which means that the restricted reporting system — established by Helis — was ignored. Even if Helis did improperly learn the details of the restricted report, he should not have compounded that breach of the victim’s privacy by investigating the allegations and further breaching the victim’s rights. This is an astonishing breach of procedure by the person who created the procedure. (Of course, it is possible that the report made to Helis in fall 2016 was not a restricted report. But, if that is the case, then he committed perjury when he made his sworn declaration – hardly the type of defense to breaching the SASH policy that Helis would want to assert.)
Victims of SASH cannot trust Helis to follow procedures designed to protect them.
It is no secret that victims of SASH are often reluctant to report their circumstances. One of the ways that society assists victims is by establishing procedures that victims know they can rely upon — procedures that will protect them from further trauma. Victims won’t come forward when they have no confidence that those procedures will be followed.
Helis doesn’t follow procedures. Victims can have no confidence that if they make a restricted report, the rules will be followed and their privacy protected. Moreover, they can have no confidence that if they make an unrestricted report, Helis’ failure to follow procedures that safeguard the accused’s rights won’t result in the accused avoiding a criminal conviction or disciplinary sanction on a technicality.
Consider also that the Academy rightfully encourages anyone with knowledge of a SASH incident to make an unrestricted report. Allowing third parties to make such reports furthers the policy of rooting out SASH at the Academy. But, people with knowledge of an incident will be reluctant to report SASH if they believe that the accused will be treated unfairly before the allegations are proven. (Such as being denied the right to graduate without being given the opportunity to contest the decision until it is too late.) When an individual decides not to report SASH out of concern for the accused, it is the victim who is harmed.
Helis’ history of managing SASH issues at the Academy prior to this incident was already subject to well-deserved criticism in numerous reports. He is not the right person to help get the Academy over the problem of victims being reluctant to report SASH. Until Helis is replaced by someone who the midshipmen can trust and have confidence in, the under-reporting of SASH at the Academy will remain an unresolved problem.
*** Back in the days of wooden ships, the term “loose cannon” referred to a cannon that broke loose from its securement during battle or a storm. A cannon rolling freely on deck was a danger to the ship and crew that it was supposed to protect. In modern usage, the term refers to someone who acts unpredictably, causing damage to the people he is serving or protecting. Superintendent “Loose Cannon” Helis fits the bill perfectly.