June 30, 2020: “An Epic Sexual Assault Scandal, 30 Years in the Making, is Coming for the U.S. Coast Guard. This FOIA Request is only the Beginning.”
June 30, 2020
VIA E-MAIL to “EFOIA@uscg.mil”
Commandant (CG-611)
Attn: FOIA Officer
Re: Freedom of Information Act Request
Dear FOIA Coordinator:
This letter constitutes a request under the Freedom of Information Act (“FOIA”) and is submitted on behalf of Maritime Legal Aid & Advocacy (“MLAA”) to the United States Coast Guard (“USCG”). MLAA is a non-profit legal aid and advocacy organization working to change the culture of the U.S. maritime industry afloat by forcing the U.S. Coast Guard to take seriously the issue of sexual harassment and sexual assault at sea aboard U.S. commercial vessels.
Pursuant to 46 U.S. Code § 10104, ship’s masters and other individuals in charge of documented vessels are required to report complaints of sexual offenses prohibited under 18 U.S. Code Chapter 109A to the Secretary of Homeland Security, or to the Secretary of the department in which the USCG is operating. MLAA seeks documents, information, and data regarding the reporting of these complaints of sexual offenses to the USCG.
Background
46 U.S. Code § 10104 “Requirement to report sexual offenses” reads as follows:
(a) A master or other individual in charge of a documented vessel shall report to the Secretary a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code.
(b) A master or other individual in charge of a documented vessel who knowingly fails to report in compliance with this section is liable to the United States Government for a civil penalty of not more than $5,000.
The threshold for sexual contact that must be reported to the U.S. Coast Guard comes from Chapter 109A of title 18, also known as the “Sexual Abuse Act.” Per 18 U.S. Code § 2246, “sexual contact” is defined as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
The clear reading of these statutes is this: if a crewmember aboard a documented vessel reports that he or she was the victim of “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,” or if a crewmember is the victim to an even more serious sexual assault, the master must report the victim’s allegations to the USCG.
46 U.S. Code § 10104 does not allow the master or other individual in charge of a documented vessel to make his or her own judgment as to the validity of the complaint. If the master receives a complaint of sexual offenses, he or she is required by law to report the complaint to the USCG.
The reporting requirement of 46 U.S. Code § 10104 were implemented in response to the troubling findings of a Government Accountability Office (GAO) investigation into the prevalence of sexual assault against women in the U.S. merchant marine (GAO/RCED-89-59). The GAO discovered numerous sexual assaults committed against female mariners aboard ships, and found that none of the sexual assaults were ever reported to the U.S. Coast Guard, or to any law enforcement agency by the vessels’ captains or the shipping companies.
In their report, the GAO investigated the rape of an American female mariner aboard a U.S. flag tanker. According to the GAO report, the victim, a documented female mariner, alleged that she was attacked and raped while asleep by another U.S. Coast Guard credentialed mariner aboard the tanker.
She managed to escape her assailant and reported the incident to the ship’s officers...According to a Coast Guard official, the ship’s captain did not report the alleged crime. Once ashore, the victim herself reported the assault to the Coast Guard and later to the FBI. We were told by one knowledgeable retired Coast Guard official that three Coast Guard district offices declined to investigate the incident until the victim finally prevailed upon one of them to initiate an investigation. The investigation eventually resulted in a formal hearing before a Coast Guard administrative law judge. The accused was found guilty of misconduct and the ruling was upheld on appeal, resulting in revocation of his seaman’s documents...subpoenaed information from the accused’s personnel file and other company records indicated that as many as eight women mariners had earlier filed complaints with their employer about various sexual offenses allegedly committed by him...One woman who had previously worked with the accused testified at the hearing that he had repeatedly offered her money if she would sleep with him and had promised her overtime if she would grant him sexual favors...We could find no evidence, however, that any of the complaints was ever reported by ships’ officers or other company representatives to the Coast Guard. Furthermore, according to a Coast Guard official the alleged rape at issue in the hearing had also not been reported by the ship’s master or other responsible officials. It was only brought to the Coast Guard’s attention, sometime after the incident, by the alleged victim herself.
To summarize: a female mariner was raped aboard a U.S. flag tanker by another crewmember. She then reported the rape to the Captain of the ship, and the Captain did not notify the USCG or any other law enforcement agency. When the woman tried to report the rape to the USCG, 3 USCG district offices refused to investigate. Finally, her incredible persistence paid off, and she prevailed upon the USCG to investigate. During the accused’s formal hearing before a Coast Guard administrative law judge, it was revealed that as many as eight women mariners had earlier filed complaints with their employer about various sexual offenses allegedly committed by him. His USCG license was revoked, and an untold number of women were spared the horror of working for this man thanks to an incredibly brave survivor of sexual assault.
In another case, the GAO was told of the rape of an American female mariner aboard a different U.S. flag oil tanker, a story that was recounted to the GAO directly by the victim, who had contacted the GAO after she read about the GAO’s ongoing investigation in the newsletter of the Women’s Maritime Association.
This woman told us that she had experienced several incidents of sexual assault and harassment in her career in the merchant marine. The alleged rape occurred...after the victim, the assailant, and several other crew members had returned to their ship after drinking and dancing ashore. The alleged victim had returned alone and gone to her room to sleep. Her assailant came into the unlocked room (company safety regulations, she said, required that rooms be kept unlocked), and because of his greater strength was able to overcome her attempts at resistance and raped her. The alleged victim claimed that she did not cry out for help—or report the incident later—because she feared that she would suffer repercussions if she did. She believed then, and remains convinced, that the burden of proof would have been on her to establish that she had not instigated the affair. It seemed easier, she told us, to live with the secret of being raped, than to expose herself to public embarrassment and censure.
In another case, the GAO investigated alleged abusive sexual contact against an American female mariner aboard a U.S. flag freighter at the hands of U.S. Coast Guard-licensed officers. The GAO found:
The victim, a graduate of the U.S. Merchant Marine Academy, was employed as relief third mate aboard a grain ship bound for Bangladesh from the East Coast. She was dismissed by the ship’s captain in Portland, Oregon, allegedly for job misconduct. She disputed the charge, claiming that the captain, opposed to having a woman on his ship, had been trying to have her removed from the moment she came aboard. Because of his blatant hostility, she alleged, including the making of derogatory remarks and references to her in sexually degrading terms, she lived and worked in an atmosphere of constant intimidation and had no support or recourse against the sexual advances of the chief mate, who repeatedly propositioned her and touched parts of her body. After her dismissal the alleged victim lodged a grievance through her union representative and a complaint of sexual harassment and other charges with the EEOC. Her case was settled without going to hearing or arbitration under an arrangement in which she received a financial settlement in the amount of wages that would have been due for the uncompleted portion of the voyage and the expunging of all adverse comments from her personnel record.
In yet another case, the GAO found that a U.S. Coast Guard credentialed crewmember aboard a passenger vessel in Hawaii sexually assaulted another female crew member, threatened two female crewmembers with violence in front of several witnesses, and subsequently received only a 3 month suspension of his U.S. Coast Guard merchant mariner’s credential as punishment for his conduct.
This case, also involving abusive sexual contact as defined by the Sexual Abuse Act, was one of only two such cases reported to us by U.S. Coast Guard headquarters as a result of a search of its automated database of administrative law judge decisions and orders. The incident in question occurred...aboard a U.S. passenger liner moored in Hilo, Hawaii. An intoxicated male crew member of the ship, after verbally abusing a female crew member in a bar ashore, including making lewd and obscene statements to her in a loud and threatening manner, resumed this behavior some minutes later aboard ship. Pursuing two female crew members in a threatening manner, speaking vulgarities, and touching the body of one of them, the assailant followed them into the ship’s galley and in front of several witnesses threatened them. As a result of his behavior aboard ship, the assailant was fired from his job and served with a charge of misconduct at the Coast Guard’s Marine Safety Office in Honolulu. He was found guilty at an administrative hearing, and his merchant mariner’s document was suspended for 3 months with an additional suspension of 6 months remitted on 12 months probation.
The GAO report details 8 separate incidents involving sexual assault against female mariners aboard U.S. Coast Guard documented vessels in the U.S. merchant marine, but they found that “more sexual assaults actually take place than are reported to authorities.” Regarding the reasons that mariners may be reluctant to report sexual assaults and sexual misconduct aboard ships, the GAO report noted the following:
According to a retired senior Coast Guard investigator, a psychologist, attorneys in private practice, and several women who had worked at sea, conditions of work aboard ship impose particular pressures on victims to refrain from reporting sexual assaults and related offenses. Specifically, they said that the shipboard setting constitutes a self contained, confined, and isolated work environment characterized by a special set of social relationships and interpersonal dynamics. With crew members highly dependent on one another, living and working at close quarters and predominantly male, women crew may experience an atmosphere of resentment, sexual innuendo, harassment, and even intimidation. Under such conditions, they may fear incurring the animosity of male crew members by reporting instances of sexual assault and related offenses. They are also fearful of doing anything that might cause them to lose their jobs, which pay considerably better than jobs on land for which they might be qualified.
Sadly, the GAO report also found the following:
One of the victims told us that of the approximately 12 women she knew of who had worked at sea, all but two had some experience of harassment involving force or threats. Most, she said, tended to view this with a certain resignation as something that goes with “the territory.” In view of the apparent reluctance of many victims of rape and other sexual offenses to report these incidents to authorities, we have no way of determining how many offenses of this nature may actually be taking place within the merchant marine or in other at sea occupations.
The GAO also found that the U.S. Coast Guard did not take the issue of sexual assault at sea seriously, and noted that GAO investigators “found it difficult to compile statistics on sexual assault at sea, because the Coast Guard, lacking a requirement or procedure for systematically reporting and centrally compiling information relating to sexual assaults committed aboard merchant ships, was unable to provide us with information concerning cases not already known to us.”
The GAO also found that the U.S. Coast Guard officials could not identify any requirement or provision of the marine casualty reporting regulations that would require ships’ officers to report sexual assaults aboard their vessels. The GAO report found the following:
Currently, the Coast Guard has no specific requirements for the reporting of shipboard sexual assaults and other offenses covered by the Sexual Abuse Act...While the Coast Guard maintains a marine casualty reporting system that requires ships’ masters and other responsible officers to report various shipboard occurrences, including any death or injury that involves incapacitation for over 72 hours, these regulations have been viewed within the Coast Guard as relating primarily to the safe operation of the vessel itself rather than to the welfare and well-being of individual crew members.
Coast Guard officials could not identify any provision of the marine casualty reporting regulations that would require ships’ officers to report injuries (defined by us to include both physical and emotional traumas) that do not result in 72-hour incapacitation of the victim. By the same token, these officials were unable to cite any other statutory or regulatory provisions that would require that incidents of sexual assault and related offenses committed aboard ship be reported to the Coast Guard.
Our work revealed no instances of sexual assaults or related sexual offenses reported to the Coast Guard through the marine casualty reporting system. Moreover, information obtained from women mariners tended to confirm that such incidents are rarely reported to the Coast Guard or other law enforcement authorities.
Recommendations of the GAO Report
Because of the troubling findings of the GAO investigation, the GAO made several recommendations and suggestions for updating the legal and regulatory framework to protect men and women from the scourge of sexual assault and sexual misconduct at sea. The GAO Report stated:
Establishing a requirement for the reporting of sexual offenses, at least within that portion of the maritime industry that is currently regulated by the Coast Guard, could, in our view, accomplish several worthwhile purposes. First, such a regulation would serve to publicize the act and increase awareness of its provisions and the penalties it provides for those who commit specific sexual offenses within the special maritime and territorial jurisdiction of the United States. Second, it would provide information on the circumstances and extent of such offenses, and a basis for determining if additional actions are necessary. Third, it could well serve to increase the willingness of victims to come forward. Aware of the captain’s obligation to investigate and report their charges, victims might have greater confidence that their accusations would be taken seriously and that their safety and welfare would be adequately safeguarded for the duration of their voyage or service aboard ship.
The GAO Report concluded:
In order to (1) promote greater awareness and understanding of the Sexual Abuse Act within the U.S. maritime industry, (2) obtain more complete information on and understanding of the extent of sexual assaults and related offenses in the industry, and (3) foster a climate conducive both to deterring sexual offenses and reporting their occurrence to appropriate authorities, we recommend that the Secretary of Transportation direct the Commandant of the Coast Guard to require that masters of vessels or other responsible officials promptly report to the Coast Guard any complaint of a criminal sexual offense covered by the Sexual Abuse Act as soon as possible following its occurrence or report of its occurrence.
Following the publication of the GAO report on sexual assault in the U.S. Merchant Marine, the U.S. Coast Guard, using its legislative authority granted by Congress, implemented a regulatory provision ( 46 U.S. Code § 10104 ), which required masters of vessels or other responsible officials to promptly report to the Coast Guard any complaint of a criminal sexual offense covered by the Sexual Abuse Act. However, the U.S. Coast Guard made the penalty for not reporting a sexual assault only a $5,000 civil fine.
This law went into effect in 1989—approximately 31 years ago.
According to our research, it appears that the USCG implemented 46 U.S. Code § 10104 in response to the highly critical GAO Report, but then made the penalty for not reporting minimal, and subsequently never publicized the new law and never enforced the law.
Despite extensive research, MLAA has been unable to find a single example of a report of sexual offenses having been submitted to the USCG pursuant to 46 U.S. Code § 10104 since the law went into effect in 1989.
Despite extensive research, MLAA has been unable to find a single example of a master or other individual in charge of a documented vessel being punished by the USCG for knowingly failing to report in compliance with 46 U.S. Code § 10104 since the law went into effect in 1989.
According to the USCG’s own data, there are more than 200,000 USCG credentialed mariners working in the U.S. maritime industry. We find it difficult to believe that, in the 31 years since 46 U.S. Code § 10104 became the law of the sea, ZERO mariners aboard documented vessels have reported a sexual offense prohibited by the Sexual Abuse to the master or other individual in charge of a documented vessel.
If the USCG is not receiving reports of sexual offenses, it means that there is likely widespread lawbreaking and non-reporting of sexual assaults in the U.S. maritime industry. Therefore we are seeking more information from the USCG on this issue.
Documents and Data Requested:
All USCG policies and procedures for the collection, storage, analysis, use, retention, and deletion of data received by the USCG pursuant to 46 U.S. Code § 10104.
All USCG policies and procedures concerning the sharing of information regarding reports of sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 with law enforcement agencies, including the U.S. Coast Guard Investigative Service and the FBI, and any other law enforcement agencies.
All reports and records of sexual offenses that have been received by the U.S. Coast Guard pursuant to 46 U.S. Code § 10104 from any employee of the U.S. Maritime Administration or any employee of the United States Merchant Marine Academy at any time since the year 2005, with any personally identifiable information about the victim or the accused omitted from the report, if required by law.
All reports and records regarding the sexual misconduct of a USCG credentialed mariner against any student of the U.S. Merchant Marine Academy that have been reported to the U.S. Coast Guard by any employee of the U.S. Maritime Administration or any employee of the United States Merchant Marine Academy at any time since the year 2005, with any personally identifiable information about the victim or the accused omitted from the report, if required by law.
All reports and records relating to USCG credentialed mariners wh0 have been investigated or punished by the USCG for failing to report to the Secretary a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code, pursuant to 46 U.S. Code § 10104, with any personally identifiable information about the victim or the accused omitted from the report, if required by law.
The total number of USCG credentialed mariners who have been investigated or punished by the USCG for knowingly failing to report to the Secretary a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code since the year 2000.
The total number of reports of sexual offenses that have been received by the USCG pursuant to 46 U.S. Code § 10104 since the year 2000.
A copy of each report of sexual offenses received by the USCG pursuant to 46 U.S. Code § 10104 since the year 2000, with any personally identifiable information about the victim or the accused omitted from the report, if required by law.
The total number of reports of sexual offenses that were received by the U.S. Coast Guard pursuant to 46 U.S. Code § 10104 in the calendar year 2019.
The total number of reports of sexual offenses that were received by the U.S. Coast Guard pursuant to 46 U.S. Code § 10104 in the calendar year 2018.
The total number of reports of sexual offenses that were received by the U.S. Coast Guard pursuant to 46 U.S. Code § 10104 in the calendar year 2017.
The total number of reports of sexual offenses that were received by the U.S. Coast Guard pursuant to 46 U.S. Code § 10104 in the calendar year 2016.
The total number of reports of sexual offenses that were received by the U.S. Coast Guard pursuant to 46 U.S. Code § 10104 in the calendar year 2015.
The total number of “open” investigations of USCG credentialed mariners regarding allegations of SEXUAL MISCONDUCT of any kind that are currently being investigated by any USCG official, including members of the U.S. Coast Guard Investigative Service, anywhere in the United States, under the regulations of 46 CFR Part 5 and/or 33 CFR Part 20. This information may be available from CDR Christopher Jones, Detachment Chief at the “Suspension & Revocation National Center of Expertise,” or from Captain Jason Neubauer, USCG, or from individual USCG district offices.
According to CDR Christopher Jones, USCG, one of the primary reasons the USCG is hesitant to take action against mariners who commit sexual assault at sea is because of the “Equal Access to Justice Act,” which, according to CDR Jones, “requires the Coast Guard to pay claims to mariners that prevail at S&R hearings under certain circumstances.” Please provide all records and reports pertaining to mariners who have successfully prevailed against the USCG under the “Equal Access to Justice Act.”
All records and reports regarding the total amount of money the USCG has paid to mariners who have successfully prevailed against the USCG under the “Equal Access to Justice Act.”
All records and reports regarding investigations of USCG credentialed mariners accused of sexual misconduct that have been conducted by the U.S. Coast Guard Investigative Service since the year 2000, with any personally identifiable information about the victim, the accused, or witnesses omitted from the report, if required by law.
The total number of sexual misconduct investigations of USCG credentialed mariners accused of sexual misconduct that have been conducted by the U.S. Coast Guard Investigative Service since the year 2000. This information can be obtained from the U.S. Coast Guard Investigative Service headquarters in Washington, D.C. Their telephone number is 202-372-3000.
All records and reports held by the U.S. Coast Guard Investigative Service regarding the investigation of Maersk Captain Mark Stinziano, with any personally identifiable information about the victim or the accused or witnesses omitted from the reports and records, if required by law.
The total number of individuals who have reported sexual misconduct allegations against Maersk Captain Mark Stinziano to the USCG or to the U.S. Coast Guard Investigative Service.
All records and reports held by the U.S. Coast Guard Investigative Service regarding the investigation of Maersk Captain Paul Willers, with any personally identifiable information about the victim or the accused or witnesses omitted from the reports and records, if required by law.
The total number of credentialed mariners who have had a Suspension and Revocation complaint served on them by the USCG, or who have been otherwise punished, for allegations related to any type of sexual misconduct since the year 2000.
Request for Expedited Processing
Expedited processing is justified because the request: 1) is made by an organization “primarily engaged in disseminating information,” which MLAA accomplishes through its large mailing list of newsletter subscribers and via its widely read blog located at https://www.maritimelegalaid.com/blog; and 2) covers information about which there is an “urgency to inform the public about an actual or alleged federal government activity,” MLAA is an organization “primarily engaged in disseminating information.”
There is an “urgency to inform the public” about whether or not masters or other individuals in charge of documented vessels are reporting complaints of sexual offenses prohibited under chapter 109A of title 18, United States Code to the USCG in accordance with federal law. If the USCG is not receiving these reports, USCG credentialed mariners at sea aboard U.S. documented vessels are at a greatly heightened risk of sexual assault aboard their vessels, as the GAO concluded in their report discussed at length in this request. The information MLAA is seeking has the potential to immediately prevent actual sexual assaults at sea from occurring. This is an incredibly urgent need. Any delay in processing this request could literally result in mariners being sexually assaulted at sea.
Request for “News Media” Fee Status
MLAA is a “representative of the news media” for fee waiver purposes. Based on our status as a “news media” requester, we are entitled to receive the requested records with only duplication fees assessed. Further, because disclosure of this information will “contribute significantly to public understanding of the operations or activities of government,” any duplication fees should be waived. However, if the USCG disputes that MLAA is a representative of the news media, MLAA is willing to pay any fees up to $1,000,000.
Conclusion
Thank you for your consideration of this request. As provided for by federal regulation, I will anticipate your determination of our request for expedited processing within 10 business days. For questions regarding this request I can be contacted via email at maritimelegalaid@gmail.com.
Respectfully Submitted,
J. Ryan Melogy
MLAA Chief Legal Officer