The topic of sexual assault prevention and response has received much high-level attention in the last decade. As a result, the Department of Defense (DOD) and Service programs regarding reporting and investigation, the rights of victims and the accused, and command responsibilities have evolved, often faster than commands can keep up. A review of several high-level DOD and Service SAPR programs is necessary to understand the procedures, policies, rights, and expectations of service members.
Department of Defense Directive (DoDD) 6495.01 establishes the overall DOD Sexual Assault Prevention and Response (SAPR) program. It is important to note that this directive does “NOT provide policy for legal processes within the responsibility of the Judge Advocates General of the Military Departments.” Rather, it establishes the regional Sexual Assault Response Coordinator (SARC) offices and the SAPR Victims Advocate (VA) programs, which are designed to take a “victim centered care” approach that seeks to address the needs of assault victims and prevent re-victimization that often occurs with sexual assault reporting and investigation.
Restricted and Unrestricted Reports
Service members and their dependents who are 18 years of age or older have a choice between making restricted or unrestricted reports of sexual assault. A restricted report is made to a specially designated individual (such as a SAPR VA) but does not trigger an official investigation. Some details of the sexual assault will be reported to the SARC and the victim's command for reporting purposes, but the name of the victim and alleged assailant will not be disclosed. The military's preferred method is unrestricted reporting, which allows DOD or its component services to initiate an investigation. If reports are first made to a service member's chain-of-command, the report must be unrestricted.
DOD has charged the Military Component Investigative Organizations (MCIOs: NCIS, CID, OSI) with the handling of all investigations of unrestricted reports. This is a departure from other types of investigations, which are often handled within commands at first. The instruction notes, “no sexual assault victim should be discouraged from requesting representation.” Therefore, before an MCIO investigator contacts a victim, the SAPR VA should make the victim aware of the availability of special victims' counsel/victims' legal counsel. The SAPR program recognizes difficulties that often accompany military sexual assault reporting, such as career impacts, reprisal, or ostracism. Because of this, victims of sexual assault may be eligible for accommodations such as expedited transfer to another command, military protective orders, or civilian protective orders. Furthermore, service members are entitled to a General Officer/Flag Officer (GO/FO) review of their case “if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of victims within one year of the final disposition of their sexual assault case,” or “if the victim believes that there has been an impact on their military career because they reported a sexual assault or sought . . . treatment.” Legal counsel is important in preparing documents for GO/FO review.
Rights of the Victim and the Accused
Of note, the accused also have legal rights in the SAPR process. When an unrestricted report is made, the MCIO will necessarily interview the accused, who should be aware of his or her rights to counsel and against self-incrimination. Further, commands must protect the anonymity of both victim and accused throughout the investigation and, then to the greatest degree possible, throughout the adjudication process.
DISCLAIMER: The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation. No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements. Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. This information is current as of September 16, 2022.