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32. Victim Rights and Programs and Sexual Assault Policy

CHAPTER 32

Victims’ Rights/Programs & Sexual Assault Policy

(SVC, SHARP, VWAP, FAP)

 

  1.       References            

  2.       Introduction

  3.       MJA Effective Date Information for Portfolio Area

  4.       Victims’ Rights

  5.       Sexual Assault Policy: Procedural Protections for Victims

  6.       Sexual Harassment/Assault Response and Prevention Program

  7.       Office of the Staff Judge Advocate Victim/Witness Assistance Program

  8.       Special Victims’ Counsel Program

  9.       Domestic Abuse and the Family Advocacy Program

 

I. References

A. Victims’ Rights References

1. Military Crime Victims’ Rights Act of 2013, 10 U.S.C. § 806b  https://www.law.cornell.edu/uscode/text/10/806b

2. Justice for All Act of 2004, 18 U.S.C. § 3771 (repeals Section 502 of Victims’ Rights and Restitution Act of 1990 (42 U.S.C. §§ 10606-10607)). https://www.law.cornell.edu/uscode/text/18/3771

3. Victim Rights Clarification Act of 1997, 18 U.S.C. § 3510. https://www.law.cornell.edu/uscode/text/18/3510

4. Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 1503, 1505, 1510, 1512-1515, 3146, 3579, 3580.

5. Victims of Crime Act of 1984, 42 U.S.C. §§ 10601-10603.

6. Crime Victims Fund, 34 U.S.C. § 20101.  https://www.law.cornell.edu/uscode/text/34/20101

7. 38 U.S.C. §1311-1314 (Dependency and Indemnity Compensation). http://www.law.cornell.edu/uscode/text/38/1311

8. Dep’t of Army Reg. 27-10, Military Justice, Chapter 17 (11 May 2016). http://www.apd.army.mil/pdffiles/r27_10.pdf

9. Dep’t of Army Reg. 600-20, Army Command Policy: para. 5-13 (Retaliation) and Chapter 7 (SHARP Program) (24 July 2020). http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/r600_20.pdf

10. Dep’t of Army Reg. 635-200, Active Duty Enlisted Administrative Separations, para. 1-15 (19 December 2016). http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/AR635-200_Web_FINAL_18JAN2017.pdf

B. Procedural Protection for Sexual Assault Victims and SHARP References

1. DoD Sexual Assault Prevention and Response Office  http://www.sapr.mil/

    2. Army SHARP Program website http://www.sexualassault.army.mil/

3. Dep’t of Army Reg. 27-10, Military Justice, Chapter 17 (11 May 2016) http://www.apd.army.mil/pdffiles/r27_10.pdf

4. Dep’t of Army Reg. 600-20, Army Command Policy, Ch. 7 (24 July 2020). http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/r600_20.pdf

5. Dep’t of Air Force Instruction (AFI) 90-6001, Sexual Assault Prevention and Response Program (21 May 2015 incorporating change 18 March 2016).

6. OPNAV Instruction 1752.1C, Navy Sexual Assault Prevention and Response (SAPR) Program (13 August 2015), https://doni.daps.dla.mil/Directives/01000%20Military%20Personnel%20Support/01-700%20Morale%2c%20Community%20and%20Religious%20Services/1752.1C.pdf

7. Marine Corps Order 1752.5B, Sexual Assault Prevention and Response (SAPR) Program (1 March 2013), http://www.marines.mil/portals/59/MCO%201752_5B.pdf

8. US Coast Guard Commandant Instruction 1754.10E, Sexual Assault Prevention and Response Program (December 2016), https://media.defense.gov/2017/Mar/29/2001723560/-1/-1/0/CIM_1754_10E.PDF

9. Army Regulation 600-37, Unfavorable Information (10 April 2018) (Processing Assignment Consideration Codes for Sex-Related Offenses)

10. DoD Directive (DoDD) 6495.01, Sexual Assault Prevention and Response Program (January  23, 2012, incorporating 20 January 2015 change), http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf

11. DoD Instruction (DoDI) 6495.02, Sexual Assault Prevention and Response Program Procedures (July 7, 2015), Incorporating Change 3, May 2017, http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf

12. DoD Instruction (DoDI) 5505.18, Investigation of Adult Sexual Assault in the Department of Defense (25 January 2015), Incorporating Change 3, 22 March 2017, http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf

13. DODM April 20, 2012: Withholding Initial Disposition Authority under the Uniform Code of Military Justice in Certain Sexual Assault Cases.  http://www.dod.gov/dodgc/images/withhold_authority.pdf

14. Army Regulation 614-200, Enlisted Assignments and Utilization Management (Expedited Transfer for Enlisted Members)

15. Dep't of Army Directive 2011-19 (3 October 2011), subject: Expedited Transfer or Reassignment Procedures for Victims of Sexual Assault,

http://www.apd.army.mil/pdffiles/ad2011_19.pdf

16. Dep't of Army Directive 2013-20 (27 September 2013), subject:  Assessing officers and Noncommissioned Officers on Fostering Climates of Dignity and Respect and adhering to the SHARP, http://www.eur.army.mil/SHARP/files/resources/AD_2013-20.pdf

17. Dep't of Army Directive 2013-21 (7 November 2013), subject: Initiating Separation Proceedings and Prohibiting Overseas Assignment for Soldiers Convicted of Sex Offenses, http://www.apd.army.mil/pdffiles/ad2013_21.pdf

18. Dep’t of Army Directive 2014-09 (07 May 2014), subject: Reserve Component Eligibility for the Special Victims’ Counsel Program, http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2014_09.pdf

19. Directive-type Memorandum (DTM) 14-007 – “Sexual Assault Incident Response Oversight (SAIRO) Report” (Expired 30 Sept. 2015 but good reference) https://www.hsdl.org/?view&did=758726

20. Dep’t of Army Directive 2015-29 (06 August 2015), subject: Confidential Reviews of Characterization of Terms of Discharge of Members of the Army Who Are Victims of Sexual Offenses, http://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ad2015_29.pdf

21. Dep’t of Army Directive 2017-02 (5 January 2017), subject: Sexual Harassment/Assault Response and Prevention (SHARP) Services for Department of the Army Civilians.

22. A National Protocol for Sexual Assault Medical Forensic Examinations, U.S. Department Of Justice Office on the Violence Against Women (April 2013). https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf

C. Office of the Staff Judge Advocate (OSJA) Victim/Witness Liaison Program References

1. 10 U.S.C. §1059 (Transitional Compensation). http://www.law.cornell.edu/uscode/text/10/1059

2. DoD Directive (DoD Dir.) 1030.1, Victim and Witness Assistance (April 13, 2004). http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf

3. DoD Instruction (DoDI) 1030.2, Victim and Witness Assistance Procedures (September 2, 2020). http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf

4. DoD Instruction (DoDI) 6400.07, Standards for Victim Assistance Services in the Military Community (November 25, 2013).

5. Dep’t of Air Force Instruction (AFI) 51-201, Victim and Witness Assistance, ch. 7 (3 February 2010).

6. OPNAV Instruction 5800.7A, Victim and Witness Assistance Program (4 March 2008).

7. Marine Corps Order P5800.16A, Victim and Witness Assistance Program (VWAP), ch 6 (28 November 2005).

8. US Coast Guard Commandant Instruction M5810.1D, Victim and Witness Protection, ch 3.M. (17 August 2000).

D.  Special Victim Counsel (SVC) Program References

1.  Special Victims’ Counsel for victims of sex-related offenses, 10 USC §1044e, https://www.law.cornell.edu/uscode/text/10/1044e

2.  Special Victim Counsel Handbook, June 2017 (4th Edition)

3.  Legal Assistance Program, 10 USC §1044, https://www.law.cornell.edu/uscode/text/10/1044

4.  TDS Policy Memorandum # 2020-01, Detailing of Defense Counsel and Formation of Attorney-Client Relationships with Alleged Victims of Sexual Offenses.

E.Domestic Abuse and FAP References.

1.  Gun Control Act of 1968, 18 U.S.C. § 921-928 (Supp. 1997). http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap44.pdf

2.  The “Lautenberg Amendment” to the Brady Handgun Violence Prevention Act, P.L. 104-208, Title VI, section 658, 110 Stat. 3009.371; codified at 18 U.S.C. § 922(d)(9), § 922(g)(9); § 925(a)(1); (effective 30 Sept. 1996).

3.  UNCLAS ALARACT 131/2003 (October 3, 2003): Final implementation of Lautenberg Amendment to the Gun Control Act of 1968 http://www.monterey.army.mil/legal/criminal_law/lautenberg_final.pdf

4.  Army Regulation 600-20, ch. 4-22 (24 July 2020): Domestic Violence Amendment to the Gun Control Act of 1968 http://www.apd.army.mil/pdffiles/r600_20.pdf  

5.  Under Secretary of Defense for Personnel and Readiness Policy Memorandum, "Restricted Reporting Policy for Incidents of Domestic Abuse" (January 22, 2006), http://www.usmc-mccs.org/victimadv/domestic/Restricted%20Reporting%20signed.pdf 

6.  DoD Instruction (DoDI) 6400.01, Family Advocacy Program (Change 2, 16 March 2018), http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640001p.pdf?ver=2018-03-16-080152-873

7.  DoD Instruction (DoDI) 6400.06, Domestic Abuse Involving DoD Military and Certain Affiliated Personnel (Change 4, 26 May 2017), http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/640006p.pdf

8.  Dep’t of Army Reg. 27-10, Military Justice, Chapter 17 (11 May 2016), http://www.apd.army.mil/pdffiles/r27_10.pdf .

9.  Dep’t of Army Reg. 608-18, The Army Family Advocacy Program (13 September 2011), http://www.apd.army.mil/pdffiles/r608_18.pdf 

10. Dependents of members separated for dependent abuse:  transitional compensation; commissary and exchange benefits, 10 U.S.C. § 1059, https://www.law.cornell.edu/uscode/text/10/1059

11. DoD Instruction (DoDI) 1342.24, Transitional Compensation for Abused Dependents, Change 1 (16 January 1997), http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf

12. Army Regulation 608-1, ch. 4-12 (22 December 2016): Army Community Service, http://www.apd.army.mil/epubs/DR_pubs/DR_a/pdf/web/AR608-1_Web_Final.pdf

II. Introduction

A. Generally.  This chapter combines previous chapters on the Victim Witness Assistance Program, Sexual Harassment/Assault Response and Prevention Program (SHARP), and Family Advocacy Program (FAP) while adding sections describing Victims’ Rights, Sexual Assault Policy, and the Special Victim Counsel (SVC) Program.  The resulting chapter is intended to act as a reference guide and general overview for existing programs serving all crime victims as well as adult and child victims of sexual offenses and domestic abuse.

B. References.  Section I includes a list of references specific to each section.  Review the source documents for a more detailed understanding of the applicable rules and policy.

III. mja effective date information for portfolio area

A. The RCMs and punitive articles discussed in this deskbook chapter will take effect 1 January 2019. 

B. Further changes to the RCMs or MREs may be signed into law through executive order and this deskbook chapter will be updated upon the next publication date after revision.

IV. Victims’ rights

A. Generally. In 1990, Congress passed the Victims’ Rights and Restitution Act, which was replaced by 18 U.S.C. § 3771, the 2004 Crime Victims’ Rights Act (CVRA).  The CVRA grants crime victims certain rights in federal criminal cases.  In general, a victim of a federal crime is guaranteed the right to be protected from the accused, the right to notice, the right not to be excluded from court proceedings, to be reasonably heard, the right to restitution and the right to confer with an attorney.  The CVRA also dictated that proceedings should be free from unreasonable delay and respect the victim’s dignity and privacy

Since the late 1990’s, many high profile military sexual assault cases focused a spotlight on military culture, handling of sexual crimes, and data collection.  The Air Force responded by creating a sexual assault victim’s counsel program in January 2013.  In July 2013, the Court of Appeals for the Armed Forces (CAAF) decided LRM v. Kastenberg, an Air Force case which established a limited right for victims to be heard through counsel at military courts-martial.  In response, and to ensure victims were afforded the same protections granted to federal crime victims, Congress passed the 2014 National Defense Authorization Act (NDAA) which included the addition of Article 6b, Uniform Code of Military Justice (UCMJ) – Rights of a Victim of an Offense Under the UCMJ, as well as a new 10 U.S.C. § 1044(e) establishing a Special Victim Counsel (SVC) under the Legal Assistance program authority.  The rights outlined in Article 6b mirror the CVRA and apply to ALL individuals who have suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ (see Article 6b(b)).

While Article 6b applies to all crime victims of an UCMJ offense, eligibility for Army Sexual Harassment/ Assault Response and Prevention (SHARP) services, Family Advocacy Program (FAP) services and Special Victim Counsel (SVC) representation varies by type of crime and victim status.  The command, office of the staff judge advocate (OSJA) and personnel across programs should work together to ensure that the rights of all crime victims are enforced.  However, the Staff Judge Advocate is specifically tasked with ensuring local policies and procedures are established to give crime victims the rights described. (see AR 27-10, paragraph 17-10(b) (11 May 2016)).

B. Definition of Victim.  Individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ.  If a victim is under 18 years old, incompetent, incapacitated or deceased, the legal guardians of the victim or the representatives of the victim’s estate, family members, or any other person designated as suitable by the military judge, may assume the rights of the victim under this section.  (Article 6b sections (b) and (c); RCM 801(a)(6); RCM 1001(c)(2); see AR 27-10, paragraph 17-10(a) (11 May 2016)).

C. Crime Victims’ Rights.  Article 6b, UCMJ; AR 27-10, PARA. 17-10.

1. The right to be reasonably protected from the accused;

2. The right to reasonable, accurate, and timely notice of any of the following:

a) A public hearing concerning the continuation of confinement prior to trial of the accused.

b) A preliminary hearing under section 832 of this title (article 32) relating to the offense.

c) A court-martial relating to the offense.

d) A public proceeding of the service clemency and parole board relating to the offense.

e) The release or escape of the accused, unless such notice may endanger the safety of any person.

3. The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or preliminary hearing officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.

      4.The right to be reasonably heard at any of the following:

f) A public hearing concerning the continuation of confinement prior to trial of the accused.

g) A sentencing hearing relating to the offense.

h) A public proceeding of the service clemency and parole board relating to the offense.

5. The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).

6. The right to receive restitution as provided in law.

7. The right to proceedings free from unreasonable delay.

8. The right to be treated with fairness and with respect for victim’s dignity and privacy.

D. Army Staff Judge Advocate Responsibilities (AR 27-10, Chapter 17, specifically paras. 17-10, 17-14, 17-15, 17-16).

1.   Staff Judge Advocates will ensure that local policies and procedures are established to provide for crime victim rights (see AR 27-10, paragraph 17-10(b) (11 May 2016)).

2.   Victims should be advised of stages in the military criminal justice system, the role that they can be expected to play in the process, and how they can obtain additional information concerning the process and the case.  The DD Forms 2701 (Initial Information for Victims and Witnesses of Crime) and DD Form 2702 (Court-Martial Information for Victims and Witnesses of Crime) should be should be provided to the victim as early in the investigation as possible, by the Military Police (MPs), CID or the VWL.  Further explanation may be required by the VWL, Trial Counsel, or SVC if applicable.

3.  Additional articulated rights for crime victims (AR 27-10, para. 17-10(a) (11 May 2016)).

a) The right to information regarding conviction, sentencing, imprisonment, and release of the offender from custody.

b) The right to submit matters for consideration by the convening authority to the PHO upon Article 32 completion (see RCM 405(k)).

c) The right to submit matters for consideration by the convening authority in granting clemency (see RCM 1106A).

4.  During investigation and prosecution of crime, will provide victims the earliest possible notice of significant events in the case (reasonable, accurate and timely), to include:

a) Status of investigation of crime, with limits.

b) Apprehension of suspected offender.

c) Decision to prefer (or file in civilian court) or dismiss charges.

d) Initial appearance of suspect before pretrial confinement hearing or at Article 32, UCMJ investigation.

e) Scheduling of each court proceeding victim is required or entitled to attend.

f) Detention or release from detention of offender or suspected offender.

g) Acceptance of plea of guilty or other verdict.

h) Opportunity to consult with trial counsel concerning evidence in aggravation.

i) Result of trial or other disposition.

j) If sentenced to confinement, probable parole date.

k) General information regarding corrections process.

l) How to submit victim impact statement to Army Clemency and Parole Board.

5.  Protection of victims and witnesses (AR 27-10, para. 17-19 (11 May 2016))

a) The SJA will ensure that victims and witnesses are advised that their interests are protected, and that tampering with testimony or retaliation against a victim or witness are punishable under Federal law (18 USC 1512, 1513) or Army Regulation (Army Directive 2014-20). 

b) The trial counsel, VWL, or other Government representative will immediately notify the SJA whenever a victim or witness expresses genuine concern for his or her safety.  In cases where the life or safety of a victim or witness is jeopardized by his or her participation in the military justice process, the SJA will ensure that appropriate law enforcement agencies are immediately notified.

c) Commanders can take action to protect a victim or witness, to include temporary attachment or assignment, permanent reassignment, or in some cases the provision of State, other Federal, or foreign protective assistance. Commanders can also provide victim protection by issuing a written order to the suspect not to contact the victim except when supervised by a member of the chain of command, or by revoking the suspect’s pass privileges. Commanders should normally use DD Form 2873, Military Protective Order, when issuing a written no-contact order. Commanders should consult with their judge advocate before taking administrative measures to protect a victim.

d) At hearings (Article 32 and courts-martial) victims and Government witnesses should be afforded the opportunity to wait in an area separate from the accused or defense witnesses. In a deployed environment, victims and Government witnesses should be afforded a separate waiting area to the greatest extent practicable.

6.  Upon sentence to confinement, the trial counsel or Government representative (VWL) will:

a) Formally inform the victim (or victim’s SVC), regarding post-trial procedures

(1)Victim’s eligibility to submit matters for consideration by the convening authority during the clemency phase (RCM 1106A)

(2)Notify if the offender’s confinement or parole status changes, and when the offender will be considered for parole or clemency

b)Provide DD Form 2703 (Post-Trial Information for Victims and Witnesses of Crime) and complete DD Form 2704 (Victim/Witness Certification and Election Concerning Inmate Status).

E.   Consultation with Victims (RCM 705; AR 27-10, para 17-15 (11 May 2016)).

1. Pretrial agreement victim consultation. Whenever practicable, prior to the convening authority accepting a pretrial agreement the victim shall be provided an opportunity to express views concerning the pretrial agreement terms and conditions in accordance with regulations prescribed by the Secretary concerned.  The convening authority shall consider any such views provided prior to accepting a pretrial agreement.  For purposes of this rule, a “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.  RCM 705(c)(3)(B)

2.  The trial counsel, VWL, or other Government representative will consult crime victims or if applicable, the SVC regarding the below critical determinations. 

a) Decisions not to prefer charges.

b) Decisions concerning pretrial restraint of the alleged offender or his or her release.

c) Pretrial dismissal of charges.

d) Negotiations of pretrial agreements and their potential terms.

3. Consultation may be limited when justified by the circumstances, such as to avoid endangering the safety of a victim or a witness, jeopardizing an ongoing investigation, disclosing classified or privileged information, or unduly delaying the disposition of an offense. The victim’s preference is not controlling and the command retains discretion to determine the disposition of the offenses to best maintain good order and discipline.  (AR 27-10, para 17-15 (11 May 2016); see Article 6b(d)(3))

F.   Defense Interviews (Article 6b(f))

1. Once the government notifies the defense counsel of the intention to call an alleged victim as a witness at any hearing, the defense counsel shall make any request to interview the victim through the Special Victim’s Counsel or other counsel for the victim. 

2.  Upon the victim’s request, the defense interview shall take place only in the presence of government counsel, victim’s counsel or victim advocate.

G.  Property Return and Restitution (Army Regulation 27-10, para 17-16 (11 May 2016)).

1.  SJAs or designees will ensure that all noncontraband seized property that has been acquired as evidence for use in the prosecution of an offense is safeguarded and returned to the appropriate person, organization, or entity as expeditiously as possible per AR 195–5, or AR 190–30, as applicable.

2.  Victims who suffer personal injury or property loss or damage as a result of an offense should be informed of the various means available to seek restitution.

a) If loss of property is the result of a wrongful taking or willful damage by a member of the Armed Forces then look to Article 139, UCMJ.  Article 139 investigations should be conducted in a manner that does not interfere with any ongoing criminal investigations or courts-martial proceedings.

3.  Victims should also be informed of the possibility of pursuing other remedies

a) Claims

b) Private lawsuits

c) Federal or State crime victim compensation programs

(1) Transitional Compensation Program for abused family members under 10 USC § 1059 (see infra Section IX)

(2) Civilian sources and points of contact to assist

(a)  Local claims office

(b)  Legal assistance or lawyer referral services

4.  Court-martial convening authorities will consider appropriateness restitution as a term and condition in pretrial agreements, and will consider whether the offender has made restitution to the victim when taking clemency action under RCM 1110.

5.  Army Clemency and Parole Board will also consider the appropriateness of restitution in clemency and parole actions.

H.  Victim Attendance at Article 32 Preliminary Hearing (RCM 405(g)(1))

1. A “victim” for purposes of RCM 405(g)(1) is defined as “a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ.”

2. The victim has a right to reasonable, accurate and timely notice of the proceeding, a right to be protected from the accused and the reasonable right to confer with counsel for the government during the hearing.

3. The victim who has alleged harm as a result of the matters set forth in a charge or specification under consideration, and is named in one of the matters set forth in a charge or specification, is NOT required to testify at the preliminary hearing. RCM 405(h)(2)(A)(iii) However, the victim has the right to be present and not excluded from any portion of the hearing, unless the preliminary hearing officer (PHO), after receiving clear and convincing evidence, determines the testimony by the victim would be materially altered if the victim heard other testimony at the proceeding.

4. The victim shall be excluded if a privilege is invoked under MRE 412, 513 or 514 or evidence is offered under MRE 412, 513 or 514 for charges other than those in which the victim is named.

I.  Victim Attendance at Court Proceedings (MRE 615)

1. A “victim” for purposes of MRE 615 is defined as “a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime, including (A) in the case of a victim that is an institutional entity, an authorized representative of the entity; and (B) in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, one of the following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v) a sibling; (vi) another family member; or (vii) another person designated by the court.”  See MCM, Appendix 22, Analysis of MRE 615 (MCM 2016 ed.).

2.  Military Rule of Evidence 615 (Excluding Witnesses) prohibits the military judge from sequestering certain categories of witnesses to prevent them from hearing the testimony of other witnesses, including: “(e) A victim of an offense from the trial of an accused for that offense, unless the military judge, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that hearing or proceeding.” 

a) Subparagraph (e) extends to victims at courts-martial the same rights granted to victims by the Crime Victims’ Rights Act, 18 U.S.C. §3771.  Victim is defined as a person directly and proximately harmed as a result of the commission of a Federal offense, and the victim has “the right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.” 18 U.S.C. §3771(a)(3). 

b) The rules allowing victims to remain in the courtroom are subject to other rules, such as those regarding classified information, witness deportment, and conduct in the courtroom.  See MCM, Appendix 22, Analysis of MRE 615 (MCM 2016 ed.).

J.  Crime Victims’ Right to be Reasonably Heard at Presentencing (RCM 1001(c)).

1.  A “crime victim” for purposes of RCM 1001(c) is defined as “a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty or the individual’s lawful representative or designee appointed by the military judge under these rules.”

2.  Procedure

a) First, the trial counsel presents matters and evidence in aggravation, to include any evidence of financial, social, psychological and medical impact on any entity or person who was the victim of an offense committed by the accused.  To present this evidence, the trial counsel may call the victim.

b) After presentation by trial counsel, a crime victim has the right to be reasonably heard.  The victim may exercise this right regardless of whether the victim was called to testify by either the government or the defense.  If the crime victim exercises the right to be heard, the court-martial will call the victim, and any documents or statements presented by the victim will NOT be marked as prosecution exhibits.

3.  Scope of the Right to be Heard.  The crime victim’s right to be heard in a non-capital case includes the right to make a sworn or unsworn statement.  The contents of the statement may only include victim impact (any impact directly relating to or arising from the offense for which the accused was found guilty) or mitigation (any matter which may lessen the punishment of which the accused has been found guilty), and may NOT include a recommendation of a specific sentence. 

a) In capital cases, the victim may only make a sworn statement. 

b) Unsworn statement.

(1) If the victim makes an unsworn statement, the victim may not be cross-examined.  The prosecution or defense may rebut any statement of fact within the unsworn statement. 

(2) The unsworn statement may be oral, written or both and requires a copy be presented to the trial counsel and defense counsel after announcement of findings (the judge may waive for good cause).

(3) A victim who makes an unsworn statement is not a witness under Article 42(b).

K.  Post-Trial

1. Victim entitled to copies of the record of trial (Article 54(e), UCMJ; RCM 1112(e)(1); AR 27-10, para. 5-45 (11 May 2016))

(a)  In a GCM or SPCM a court reporter shall provide a copy of a certified record of trial, free of charge, to:

(1)  The accused;

(2)  The victim of the offense if the victim testified during the proceedings;

      (3)  The victim named in a specification of which the accused was charged, without regard to the findings of the court-martial, upon request of the victim.

(b)   If impracticable to send directly to victim, send to victim’s attorney.  The record will not contain classified information, information under seal or recordings of closed sessions of the court-martial.

(c)   Any victim entitled to a copy of the certified record of trial shall be notified of the opportunity to receive a copy. 

(d)   ROT service on a qualifying victim.  The ROT should contain the documents listed in RCM 1112(b).

 L.  Post-Trial - Matters Submitted by a Crime Victim (RCM 1106A)

1. Defined.  For purposes of this rule, a “crime victim” is “an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty, and on which the convening authority may take action under RCM 1109 or 1110, or the individual’s lawful representative or designee appointed by the military judge under these rules.”

2.  Matters Submitted.  May submit any matters that may reasonably tend to inform the convening authority (CA), but the CA is only required to consider written submissions.  Submissions do not have to conform to the MREs, however, the matters may not relate to the character of the accused unless the evidence was introduced at trial. 

3.  Timing.  After a trial by general or special courts-martial, a crime victim may submit matters within 10 days of announcement of sentence, and within 7 days of announcement of sentence in a summary court-martial.  The CA may, for good cause, extend the period for not more than 20 days.  Good cause ordinarily does not include the need to obtain matters that could have been obtained prior to the conclusion of the court-martial. 

4.  Waiver.  The victim is entitled to one opportunity to submit matters to the CA under RCM 1106A.  Failure to submit matters within the time limits waives the right to submit matters.  The victim may also waive the right to submit matters.  The waiver needs to be in writing and once filed, may not be revoked.

M.    Disclosure of Information to Crime Victims (TJAG Policy Memo 17-08, December 2017)

1. Upon Preferral of Charges the Government will provide to the victim (or SVC):

a) A copy of all statements and documentary evidence produced or provided by the victim;

b) An excerpt of the charge sheet setting forth the preferred specifications pertaining to the victim;

c) The date time and location of any pretrial confinement review pursuant to RCM 305, and the preliminary hearing pursuant to Article 32, UCMJ.

2. Upon Receipt or Filing, the Government will provide to the victim (or SVC):

a) A summarized transcript of the victim’s testimony at the preliminary hearing;

b) An excerpt of the charge sheet setting forth the referred specifications pertaining to the victim;

c) Any docket requests, as well as docketing or scheduling orders including deadlines for motions and the date and location of trial sessions;

d) A copy of any motion or responsive pleading that may limit a victim’s ability to participate, affect the victim’s possessory rights in any property, concern privileged communications or private medical information or involve the victim’s right to be heard;

e) Any defense request to interview the victim.

3. Any additional crime victim requests for documents or investigative reports may be processed through the Freedom of Information Act (FOIA) or Privacy Act.

N. Protection from Retaliation.  All crime victims will be protected from restriction of their communications, reprisal by their command for making a report, ostracism or social retaliation by their peers, and cruelty and maltreatment.

1.   Reprisal (Professional Retaliation) – Whistleblower Protection Act (10 U.S.C. §1034); Army Regulation 20-1 (Inspector General Activities and Procedures); Army Regulation 600-20, para. 5-13 (24 July 2020); Article 132, UCMJ.

a) Military Whistleblower Protection (DoD Directive 7050.06 and AR 600-20, para. 5-12)

(1)  Restricting Communications with Members of Congress and Inspector General (IG) and Members of Congress Prohibited.  No person may restrict a member of the armed forces in communicating with a Member of Congress or an IG.

(2)  Prohibition of Retaliatory Personnel Actions for Communications.  No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing or being perceived as making or preparing communications to the following (including but not limited to);

(a) Member of Congress or an Inspector General

(b) Member of a Department of Defense audit, inspection, investigation, or law enforcement organization

(c) Any person or organization in the chain of command or any person designated to receive such communications (refer to AR 600-20, para. 5-13).

(3)  Investigations completed by IG or DoD IG.  Administrative actions may be taken in response to a founded IG investigation.

b)  Retaliation, Article 132, UCMJ

      (1) Any person subject to the UCMJ who, with the intent to retaliate against any person for reporting or planning to report a criminal offense, or making or planning to make a protected communication, or with the intent to discourage any person from reporting a criminal offense or making or planning to make a protected communication:

(a)Wrongfully takes or threatens to take an adverse personnel action against any person; or

(b)Wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person; shall be punished as a court-martial may direct.

(2) The term protected communication includes a communication to a member of Congress or the Inspector General (IG), as well as a communication to covered individuals (see 10 U.S.C. §1034(b)(1)(B)) that the member reasonably believes constitutes evidence of a violation of law or regulation (including sexual harassment or unlawful discrimination) or gross mismanagement of funds, abuse of authority, or a substantial and specific danger to public health or safety.

(3) The new retaliation (reprisal type) punitive article mirrors the Whistleblower Protection Act, but adds an intent element which may be difficult to prove.  It is possible that the IG continues to investigation reprisal complaints with a hand off to CID when the intent to retaliate is substantiated.

c)  Reprisal type retaliation defined in Army Regulation 600-20 para. 5-13 as “taking or threatening to take an adverse or unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, with respect to a victim or other member of the Armed Forces because the individual reported a criminal offense or was believed to have reported a criminal offense.”

(1)  Investigations completed by IG or DoD IG if high ranking subject or sexual assault victim reported.  Punitive and prosecuted under Article 92, UCMJ.

d)  Command actions in evaluation.

(1) Raters are required to document significant deviations from commitment to unlawful discrimination and/or sexual harassment and identify instances of reprisal/retaliation taken by the rated individual in that evaluation report.

(2) If a Soldier’s separation appears to be in retaliation for the Soldier filing an unrestricted report of sexual assault, SCMCA and GCMCA should consider in their mandatory review in consultation with the SJA.

2.  Cruelty and Maltreatment (Article 93, UCMJ; AR 600-20 para. 5-13)

a)Defined.  Cruelty, oppression or maltreatment, although not necessarily physical, must be measured by an objective standard.  Assault, improper punishment and sexual harassment may constitute the offense.  The imposition of necessary or proper duties and the exaction of their performance does not constitute this offense even though the duties are arduous or hazardous or both. (see Article 93, UCMJ).

b)Between members of different ranks.  Cruelty toward, oppression or maltreatment of any person subject to the orders or the alleged offender may be punished under Article 93, UCMJ

(1) Allegations of a subordinate against a superior Servicemember will be referred to and investigated by the appropriate investigative agency, organization or entity (usually victim’s chain of command, Military Police/CID).

c) Between peers or other persons.  Acts of cruelty, oppression or maltreatment (as defined in Article 93, UCMJ) committed against a victim, an alleged victim or another member of the Armed Forces by peers or other persons, because the individual reported, or was believed to have reported a criminal offense.

(1) Allegations of cruelty, oppression or maltreatment between peers or other persons will be referred to and investigated by the victim’s chain of command or by any other appropriate investigative agency, organization or entity.

(2) Punishable under the punitive AR 600-20/ Article 92, UCMJ.

3. Ostracism and Social Retaliation (see Army Regulation 600-20, para. 7-11)

a) Defined as “excluding from social acceptance, privilege or friendship a victim or other member of the Armed Forces because: 

          (1) the individual reported a criminal offense;

          (2) the individual was believed to have reported a criminal offense; or*

      (3) the ostracism was motivated by the intent to discourage reporting of a criminal offense or otherwise to discourage the due administration of justice.” 

b) *Given the constitutional issues associated with the enforcement of the prohibition against ostracism, judge advocates should consult their supervisory SJA or OTJAG before advising their clients as to the nature and extent of this prohibition.  (see 2014 MilSuite message from BG Thomas Ayres, DJAG indicating that the “or” should be read as “and”)

c) According to the DoD Retaliation Prevention and Response Strategy (April 2016), military justice responses to offenses of ostracism may engender resentment and further retaliation against a crime victim.  More effective methods to reduce ostracism fall under command prevention strategies and informal resolution.

d) Allegations of ostracism/social retaliation will be referred to and investigated by, the victim’s chain of command or supervision or by any other appropriate investigative agency, organization or entity.  Sections of AR 600-20 defining command responsibility to prevent ostracism are not currently punitive.  

4. Reporting and tracking in cases of sex assault.  The SARC will track incidents of retaliation at the SARB and the command will address in accordance with the DoD Retaliation Response and Prevention Strategy and Implementation Plan and AR 600-20.  (see infra Section VI)

5. Online misconduct, or the use of electronic communication to inflict harm, includes communication of a threat, indecent language, obstruction of justice, stalking, sexual harassment, bullying, hazing, retaliation or any other types of misconduct that undermine dignity and respect.  (see AR 600-20, para. 4-19)

a) Soldiers or civilian employees who participate in or condone misconduct, whether offline or online, may be subject to criminal, disciplinary, and/or administrative action.  Contractor employee misconduct will be referred to the employing contractor through applicable contracting channels for appropriate action.

b) Personnel who experience or witness online misconduct should report matters to the chain of command, supervisor, family support services, equal opportunity/equal employment opportunity, SHARP, IG or Army law enforcement.

c) When the electronic communication is the primary means or most important charge of misconduct, then the OSJA (usually the Chief of Justice) should report the allegation using the “Report of Online Misconduct and Disposition” form to OTJAG, Criminal Law Division, within one week of the command’s disposition of the allegation of online misconduct.  Do not report if the online misconduct is evidence or a minor charge.

O. Enforcement: 

1. By Appellate Courts (Article 6b(e))

   a) Petition for a writ of mandamus

(1) If the victim of an offense believes that a preliminary hearing ruling under Article 32 or a court-martial ruling violates the rights of the victim afforded by an Article or rule (specifically including MRE 412, MRE 513, MRE 514 or MRE 615), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the Article or rule.

(2) If the victim of an offense is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.

(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals (CCA) and, to the extent practicable, shall have priority over all other proceedings before the CCA.  Review of any CCA decision by the Court of Appeals for the Armed Forces (CAAF), shall have priority as determined under CAAF rules. (See 2018 NDAA, sec. 531(a))

2. Congressional Inquiry.  Public Law entitles constituents to correspond with their elected officials.  Interested parties may ask elected officials to help with a matter involving the DoD.  http://open.defense.gov/Transparency/Congressional-Inquiries/

3. Inspector General (IG) Complaint. (AR 20-1)

     a) Any Army military or civilian member may file.

b) Complaint may be filed with command or supervisor, IG or other established grievance channel.

4. Complaints of Wrongs (Article 138, UCMJ)

a) Any member of the armed forces may apply to his/her commanding officer for redress of a perceived wrong. 

b) If refused, the Soldier may complain to any superior commissioned officer who forwards the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made.

5. Informal Resolution.  In cases of government mistake or negligence, a negotiated solution between victim or victim’s representative and Government counsel or command may be appropriate.

6. Nothing in Article 6b should authorize a cause of action for damages, or create /imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages.  Article 6b(d).

7. Nothing in Article 6b should impair the exercise of discretion under Articles 30 and 34 (preferring and referring charges).  This 2017 NDAA added provision could be interpreted to mean that victims do not decide whether or not charges are preferred or referred and that the command still decides what disposition is appropriate after an allegation. Article 6b(d).

P. Victims’ Rights Case Law

1. United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003).  CAAF overturns 53 years of precedent and holds that it will no longer follow a policy of abatement ab initio for appellants who die following review by the intermediate service courts but prior to final review by the Court of Appeals for the Armed Forces. The rationale for overturning the abatement policy rested on two grounds:  first, even after the death of a military defendant “there remains a substantial punitive interest in preserving otherwise lawful and just military convictions”; and second, the impact of abatement ab initio on victims’ rights, and, in particular, the issue of restitution as a condition of a pretrial agreements, reduced sentence, clemency, or parole. “Particularly where there has been one level of appeal of right, abatement ab initio at this level frustrates a victim’s legitimate interest in restitution and compensation.”

2. United States v. Ducharme, 59 M.J. 816 (N-M. Ct. Crim. App. 2004).  Appellant was tried in July, 1999, prior to the effective date of changes to MRE 615 permitting sentencing witnesses to observe trial on the merits (the effective date of those changes is 15 May 2002).  The court held that the military judge did not err when he ruled that, under Mil. R. Evid. 806 (control of spectators), one of the government’s sentencing witnesses (negligent homicide victim’s mother) could remain in the courtroom throughout trial.  In addition, under Mil. R. Evid. 615 as it existed at the time of appellant’s trial which required sequestration of witnesses upon request of either party, the trial defense counsel waived the issue.  Finally, even assuming the military judge erred under Mil. R. Evid. 615 as it existed at the time of appellant’s trial, any error was harmless.

3. LRM  v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013).  Widely viewed to be the precursor to Article 6b and the Special Victim Counsel (SVC) program, LRM strengthened the right of the victim to be heard on issues of privilege and MRE 412 during a court-martial.  The three issues certified by the Air Force Judge Advocate General to C.A.A.F. include whether the service court of appeals (CCA) erred by holding it lacked jurisdiction to hear victim’s petition for a writ of mandamus under the All Writs Act; whether the military judge erred by denying the victim the opportunity to be heard on an MRE 513 issue through counsel in violation of protections under the MRE, the CVRA and the U.S. Constitution; and whether C.A.A.F. should issue a writ of mandamus to the lower court.  LRM  held that the C.A.A.F. has statutory jurisdiction to review the CCA’s finding on the basis of TJAG certification, and that the CCA erred in determining there was no subject-matter jurisdiction because the court did not apply the correct analysis.  The court also determined that even though victims are not a party to the litigation, they are not precluded from asserting standing to contest a ruling on a held privilege, stating “a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel.”  Declining to issue a writ of mandamus, C.A.A.F. returned the issue back to the trial court reinforcing the military judge’s discretion to impose reasonable limitations on the victim’s right to be heard under RCM 801.

4. EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016).  In light of the plain language of Article 6b, C.A.A.F. claims lack of jurisdiction to entertain a writ-appeal by alleged victim who sought to reverse a military judge’s order for disclosure of mental health records (MRE 513). Article 6b(e) granted right to victims allowing for mandamus petition to a court of criminal appeals ends at the CCA.  This precedent may be negated by the 2018 NDAA, sec. 531 which adds to Article 6b the language “(C) Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces.”

5. Randolph v. HV & United States, No. 16-0678 (C.A.A.F. Feb. 2, 2017).  In light of the plain language of Article 6b, C.A.A.F. also lacks jurisdiction to entertain an accused’s appeal of a CCA decision to grant victim petitioner’s request for a writ of mandamus, denying the trial court’s order to disclose mental health records (MRE 513).  The accused argued that jurisdiction existed under Article 67(a)(3) of the UCMJ, however C.A.A.F. concluded that there was no precedent to apply Article 67 cases to a petition filed under Article 6b, and that “it would violate congressional intent for this Court to review Article 6b cases upon petition by the accused but not the victim.”  This precedent may be negated by the 2018 NDAA, sec. 531 which adds to Article 6b the language “(C) Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces.”

Victim’s Unsworn Statement

6. United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018) - Harmless error to admit victim impact statement (under former RCM 1001A) from NCMEC in a child porn case.  CAAF concludes inadmissible because the victim did not actually participate in the proceeding.

7. United States v. Hamilton, No. 18-0135 (C.A.A.F. Feb. 28, 2019) - Victim unsworn statement under RCM 1001A is not evidence (akin to the accused’s unsworn statement).  

Pre-referral Petitions for Writs of Mandamus

8. AG v. Hargis, 77 M.J. 501 (A. Ct. Crim. App. Aug. 16, 2017) – Article 6b petition for writ of mandamus requires a preliminary hearing, a court-martial ruling, or an order to submit to a deposition. In a discovery request made prior to preferral of charges, Article 6b(e) doesn’t apply, and the petition is frivolous.

9. A.M. v. United States, No. 201700158 (N-M. Ct. Crim. App. Jul. 31, 2017) – Petition argued right not to be excluded included the right to view the parties’ submissions to the Article 32 PHO.  The victim’s right not to be excluded does not include the right to all documents submitted by the parties.

V. Sexual assault policy:  procedural ProtectionS for Victims

A.Generally.  Besides the protections afforded to all crime victims under Article 6b, victims of sexually related offenses are provided additional procedural protections, with the greatest protections granted to victims of rape, sexual assault, forcible sodomy and attempts of those crimes.  While this section will address baseline DoD policy and Army implementation, it is important to note that victims from other services may be afforded additional protections, and that each Army General Court Martial Convening Authority (GCMCA) may impose additional requirements or withholding policies with regard to sexually related offenses.  When arriving to a new location, always check the existing local policies.

B.Definitions

1.  The definitions of “Sexual Assault” and “Sex Related Offenses” may vary depending on the source or regulation as well as the date of the alleged offense and the applicable language of Article 120 at the time of the offense.  Always check the source document’s definition.           

2.  In general, the policy term “Sexual Assault” includes:  Violations of Article 120 (rape, sexual assault, aggravated sexual contact, abusive sexual contact), Article 125 (forcible sodomy) and attempts of any of the above offenses in violation of Article 80, UCMJ.  This definition of sexual assault is used in surveys and data collection regarding the prevalence of offenses in in the military.

3.   In general, the term “Sex Related Offenses” includes:  Violations of Article 120 (rape, sexual assault, aggravated sexual contact, abusive sexual contact), Article 120a (pre-1 January 2019 stalking; post-1 January 2019 depositing obscene matters in the mail), Article 120b (rape and sexual assault of a child), Article 120c (other sexual misconduct – indecent viewing/visual recording/broadcasting; forcible pandering; indecent exposure), and attempts of any of the above offenses in violation of Article 80, UCMJ.  If an offense falls under one of these articles, then the victim has the right to an SVC, and the command must take certain actions throughout the process.

4.  There are additional offenses under Article 134, UCMJ which could encompass sexual conduct which do not explicitly fall under the definition of sex related offenses and do not require additional protections above and beyond the rights provided to all victims.  These offenses include indecent conduct, indecent language, pandering and prostitution, child pornography as well as the post-1 January 2019 Article 130 stalking offense.

5. NOTE:  The 2017 NDAA and Military Justice Act (MJA) will revise the above definitions with an effective date of no later than 1 January 2019.

C. Rights for Victims of Sex Related Offenses.  In addition to the rights and protections afforded to all victims of crimes under the UCMJ, victims of sex related offenses may be eligible for the following procedural protections.

1.   Option to file a Restricted Report (see infra Section IV).

2.   Access to Sexual Assault Response Coordinator (SARC) and Victim Advocate (VA) along with medical and counseling services in accordance with the Sexual Harassment/ Assault Response and Prevention (SHARP) program (see infra Section IV).

3.   Ability to request Expedited Transfer (see infra Section IV).

4.  Right to consult and retain SVC (10 USC §1044e) see infra Section VI and Army Regulation 27-10, para. 17-10 (a) (11 May 2016))

a)   Must be notified of right to consult with SVC prior to interview or making an official statement and upon initial contact with the following individuals:

(1) Military Criminal Investigator

(2) Government Counsel (Trial Counsel)

(3) Sexual Assault Response Coordinator (SARC)

(4) Victim Advocate (VA)

(5) Victim Witness Liaison (VWL)

b)  An eligible victim may decline representation by an SVC.

5.   Withholding Sexual Assault Initial Disposition Authority (SA-IDA) to the O-6 Brigade Commander (see infra Section IV).

6.  Command (O-6 Brigade Commander) deferral of victims’ collateral misconduct adjudication until after final disposition of the charges against the accused (see infra Section IV).

a)   Assignment of TDS counsel to represent the victim (TDS Policy Memorandum # 2014-01, Detailing of Defense Counsel and Formation of Attorney-Client Relationships with Alleged Victims of Sexual Offenses)

b)  Commander must consider immunity for the victim if the collateral misconduct is deferred. (See DoDI 6495.02, Enclosure 5)

7.  Interviews (Article 6b(f), UCMJ; AR 27-10, paragraph 17-10(11)(a) (11 May 2016); RCM 701(e)(1); 10 U.S.C. § 1044e(b)(6)): 

a)   Victim may have escort/ SVC with them during law enforcement interviews.

b)   Defense Counsel Interviews

(1)  Defense Counsel (DC) should request interview through Trial Counsel (TC), VWL, SVC or other victim representative. 

(2)  Upon TC notice to DC of intent to call alleged victim to testify at an Article 32 Preliminary Hearing or a court-martial, DC must make any request to interview victim through SVC or other victim’s counsel.

(3)  If requested by alleged victim, any interview shall take place only in the presence of the TC, victim’s counsel/SVC, SHARP VA.

8.   Opportunity to Express Preference Regarding Prosecution Venue (RCM 306(e); AR 27-10, paragraph 17-10(a)(11)(c) (11 May 2016)):

a)   Alleged victim of an offense committed in the United States shall be provided with an opportunity to express views as to whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense.

b)   The TC, VWL, other Government representative or SVC will obtain the preference, and the convening authority shall consider the victim’s preference for jurisdiction prior to making an initial disposition determination and shall continue to consider the victims views until final disposition. 

c)   The convening authority shall ensure that the civilian authority with jurisdiction is notified of the victim’s preference.

9.   Command Preferral and Referral Decisions

a)   The convening authority shall not consider the service history of the accused in the decision to prefer or refer charges of sexual assault

b)   If the convening authority and SJA agree that referral of sexual assault charges are not appropriate in a case, then the decision will be reviewed by the next highest commander.  If the SJA believes that charges should be referred and the convening authority decides that referral of charges is not appropriate, then that decision shall be reviewed by the Secretary of the Army.  (AR 27-10, para. 5-19 (11 May 2016); formerly AD 2014-19)

c)   If the convening authority refers a charge for rape, sexual assault, rape of a child, sexual assault of a child or attempts of the above (Articles 120(a), 120(b), 120b(a) and 120b(b), and Article 80), then the charges must be referred to a General Court Martial.  (RCM 201(f)(1)(D)).

10. Mandatory minimums.  If the accused is found guilty of rape, sexual assault, rape of a child, sexual assault of a child, or attempts of the above (Articles 120(a), 120(b), 120b(a) and 120b(b) or Article 80), then the punishment must include, at a minimum, dismissal or dishonorable discharge. (Article 56(b), UCMJ).

11.  Command Review of Administrative Separations.  All SPCMCA and GCMCAs will review all administrative separation actions involving victims of sexual assault.  The review must consider the following.  (AR 600-20, para. 8-5; AR 635-200, para. 1-15)

a)  If the separation appears to be in retaliation for the Soldier filing an unrestricted report of sexual assault. If so, consult with SJA.

b)  If the separation involves a medical condition related to the sexual assault, to include Post Traumatic Stress Disorder. If so, consult with the medical personnel.

c)  If the separation is in the best interests of the Army, the Soldier, or both. If not, consult with SJA.

d)  Status of the case against the alleged offender, and the effect of the Soldier’s (victim’s) separation on the disposition or prosecution of the case. If the case is still open, consult CID and SJA.

VI.Sexual Harassment/assault response and prevention program (sharp)

A.Generally.

1. The Sexual Harassment/Assault Response and Prevention (SHARP) Program reinforces the Army’s commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting and follow-up.  Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those who commit these crimes.

2. Sexual Assault Policy.  Sexual assault is a criminal offense that has no place in the Army.  It degrades mission readiness by devastating the Army’s ability to work effectively as a team. It is incompatible with the Army Values and is punishable under the UCMJ and other federal and local civilian laws.

3. Relationship with DoD Sexual Assault Response and Prevention Office (DoD SAPRO).  The DoD SAPRO office is the single point of accountability for sexual assault policy and assessment within the DoD and it provides oversight to ensure that each of the Service's programs complies with DoD policy and DoD Instruction (DoDI) 6495.02, Sexual Assault Prevention and Response Program Procedures.  The Army SHARP program provides services to those who report both sexual assault and sexual harassment. 

B. Eligibility for SHARP services.

1. SHARP Sexual Assault Response Coordinator (SARC) and Victim Advocate (SHARP VA) services.  Active duty (AD) Service members, National Guard (NG) and Reserve Component (RC) members, and Department of the Army Civilians (see Army Directive 2017-02 and extension of pilot program for DA civilians) will be eligible to receive advocacy services from a SARC or SHARP VA regardless of whether the assault took place while on active duty, prior to enlistment or commissioning, or while performing inactive duty training.

2. Eligibility to file a Restricted or Unrestricted report of Sexual Assault.  Service members, NG and RC members, DoD Civilian employees (see AD 2017-02), and military dependents over 18 years of age who were victims of a perpetrator other than a spouse or intimate partner, will be eligible to file a restricted report regardless of whether the assault took place while on active duty, prior to enlistment or commissioning, or while performing inactive duty training.  Dependents under 18 and all other non-military victims are not eligible to file a restricted report.

3. Medical Care.  Service members, NG and RC members are eligible for treatment at a military treatment facility (MTF).  Non-military victims of sexual assault are only eligible for medical services at an MTF if that individual is otherwise eligible as a Service member or TRICARE beneficiary of the military health system to receive treatment in an MTF at no cost to them.

a) A reserve component sexual assault victim whose reported offense occurred while on active duty and who is expected to be released from active duty before the Line of Duty (LOD) determination is made, may request that the Service Secretary retain the member on active duty until completion of an LOD determination to assure continuity of health care services. 

4. Non-military individuals, including DoD Civilian employees and their family dependents over 18 years of age, along with US citizen DoD contractor personnel when authorized to accompany the force, are offered LIMITED SAPR services to be defined as the assistance of a Sexual Assault Response Coordinator (SARC) and a SAPR Victim Advocate (VA) while undergoing emergency care OCONUS and limited emergency medical care at an MTF.

5. Victims of sexual assault, domestic abuse or child abuse will be referred to the Family Advocacy Program (FAP) victim advocacy in accordance with Department of Defense Instruction (DoDI) 6400.06.

C. Definition of Sexual Assault.  For the purpose of DoD-wide sexual assault prevention and response awareness training and education, the term “sexual assault” is defined as intentional sexual contact, characterized by use of force, threats, intimidation, or abuse of authority or when the victim does not or cannot consent.  “Consent” shall not be deemed or construed to mean the failure of the victim to offer physical resistance.  Consent cannot be given when the offender uses force, threat of force, coercion, or when the victim is asleep, incapacitated, or unconscious.  The term includes a broad category of sexual offenses consisting of the following specific UCMJ offenses:

1. Article 120, UCMJ: Rape, sexual assault, aggravated sexual contact, abusive sexual contact (now including the former forcible sodomy Article 125, UCMJ)

2. Article 80, UCMJ:  Attempts to commit Article 120 acts   

D. Definition of Sexual Harassment.  (see AR 600-20, Chapter 7; 10 USC 1561)

1. Definition of Sexual Harassment.

a) Conduct involving unwelcome sexual advances, requests for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature when—

(1)  submission to such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career;

(2)  submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person; or

(3)  such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment; and

(4)  The conduct is so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the environment as hostile or offensive. (NOTE:  This language is a change from the previous language of the statute. Previously, the hostile “environment” was termed hostile “working environment.”  It is expected that harassing behavior outside of work can fall under sexual harassment).

b) Use or condonation, by any person in a supervisory or command position, of any form of sexual behavior to control, influence, or affect the career, pay, or job of a member of the armed forces or a civilian employee of the Department of Defense

c) Deliberate or repeated unwelcome verbal comments or gestures of a sexual nature by any member of the armed forces or civilian employee of the Department of Defense.

2. Categories of Sexual Harassment:

a) Verbal:  telling sexual jokes, using sexually explicit profanity, threats, sexually oriented cadences, or sexual comments. Can include “honey, sweetheart, babe, hunk.”

b) Non-verbal:  blowing kisses, winking, staring (undressing with eyes).

c) Physical:  touching, kissing, but also blocking hallways, unsolicited back or neck rubs. (Note:  There is significant overlap between that physical contact which constitutes Abusive Sexual Contact (a type of sexual assault) and that physical contact which constitutes sexual harassment.  Any unwanted physical contact reported or alleged related to or in context of sexual harassment must be reported immediately to USACIDC for investigation.  The USACIDC investigation process will determine if the physical contact meets the legal definition of sexual assault. On 1 January 2019, the definition of Abusive Sexual Contact will no longer include these types of offenses but USACIDC guidance may be revised, so consult with the Special Agent in Charge of the local CID office.)

3.  Types of Sexual Harassment:

a) Quid pro quo:  conditions placed on career or teams of employment in return for favors.  Includes implicit or explicit threats of adverse action. Can include third-party victims who are affected by job actions granted to another in exchange for sexual favors.  Examples include sexual favors in exchange for promotion, award or assignment, or a poor evaluation for Soldier or civilian who refuses a dating request.

b) Hostile environment:  Brings the topic of sex or gender differences into the workplace and can include behaviors outside of the workplace. Need not be quid pro quo. If physical acts, sexual comments, or non-verbal actions unreasonably interfere with the job performance of another, it is sexual harassment. Can include comments about body parts, sexual jokes, suggestive pictures.

4.  Procedure:  Complaints of sexual harassment follow same procedures as Equal Opportunity complaints.  See AR 600-20, chapter 7, for details.

E.Victim Advocacy Program Personnel.  Victim’s use of advocacy services is optional; however, commanders must ensure that victims have access to a well-coordinated, highly responsive sexual assault victim advocacy program that is available 24 hours a day/seven days a week both in garrison and in a deployed environment.

1. Sexual Assault Response Coordinator (SARC).  The SARC is the single point of contact (POC) for all sexual assault, sexual harassment and retaliation complaints.  This is a 2012 change from past practice, in which sexual harassment was handled by Equal Opportunity officers (see ALARACT 007-2012).

a) Full time SARCs and SHARP VAs required at the brigade (or equivalent) level.  Collateral duty SARC and SHARP VAs required at the Battalion & Installation level.

b) Senior Commander appoints Lead SARC

c) Appointed Installation or Brigade SARC reports to Lead SARC

d) Supervises & oversees:

(1) Supervises SHARP VAs

(2) Serve as the program manager of victim support services who coordinates and oversees the local implementation and execution of the Sexual Assault Prevention and Response Program.

(3) Ensure overall local management of sexual assault awareness, prevention, training, and victim advocacy.

(4) Oversee Victim Advocates and Unit Victim Advocates in the performance of their duties providing victim services.

(5) Ensure victims are properly advised of their options for restricted and unrestricted reporting.  Ensure victim acknowledges in writing his/her preference for restricted or unrestricted reporting on a DD Form 2910, Victim Reporting Preference Statement (VRPS).

(6) Ensure all unrestricted reported incidents of sexual assault are reported to the installation commander within 24 hours.

(7) Ensure that non-identifying personal information/details related to a restricted report of sexual assault is provided to the Installation Commander within 24 hours of occurrence.  This information may include: rank, gender, age, race, service component, status, time and location.  Ensure that information is disclosed in a manner that preserves a victim’s anonymity.  Careful consideration of which details to include is of particular significance at installations or other locations where there are a limited number of minority females or female officers assigned.

(8) Ensure victims are notified of the resources available to report instances of retaliation, reprisal, ostracism, maltreatment, sexual harassment or to request a transfer or MPO.

(9) Responsible for entering information into Defense Sexual Assault Information Database (DSAID) and tracking reports of sexual assault, sexual harassment and retaliation.

2. Each brigade has a unit SARC appointed by the brigade commander. In addition, each battalion is assigned two deployable unit victim advocates.

3. Requires 80-hour TRADOC MTT-provided training course.

4. Requires 90-day “right seat” training w/ VA and EO personnel.

5. Grade/Rank requirement:

(a) Battalion level SARC/SHARP: SFC, MAJ, CW3, GS-11 or higher

(b) Brigade and below VA/SHARP: SSG, 1LT, CW2, GS-9 or higher

F. Sexual Harassment/Assault Response and Prevention Victim Advocate (SHARP VA)

1. Seven week TRADOC MTT-provided training course. Five additional weeks for VA instructors.

2. 90-day “right seat” training w/ VA and EO personnel

3. Grade/rank: SSG, 1LT, CW2, GS-9 or higher

4. Duties:

a) When assigned by the SARC, provide crisis intervention, referral, and ongoing non-clinical support to the victim. The victim alone will decide whether to accept the offer of victim advocacy services. VAs are not counselors, they are facilitators of services.

b) Referral to services includes: psychological treatment, medical, legal, housing assistance; full range of FAP and civilian victim support services

c) Report to and coordinate directly with the SARC when assigned to assist a victim.

d) Inform victims of their options for restricted and unrestricted reporting, and explain the scope and limitations of the SARC’s role as an advocate.

e) If the victim chooses restricted reporting, ensure the victim is taken to a healthcare provider in lieu of reporting the incident to law enforcement or chain of command.

f) If victim chooses the unrestricted reporting option, the SHARP VA will immediately notify law enforcement and healthcare provider.

g) Safeguard documents in their possession pertaining to sexual assault incidents and protect information that is case related.

G. Commander Responsibilities (see AR 600-20, chapter 8-5o and appendix F)

1. The victim’s unit commander must take the following actions in the case of an unrestricted report of sexual assault.

a) Immediately notify CID.  Do NOT conduct an internal command directed investigation of the sexual assault.

b) Notify the Sexual Assault Response Coordinator (SARC) and report all incidents of sexual assault to the office of the staff judge advocate within 24 hours.

c) Ensure the victim’s physical safety.  This frequently will involve coordinating with the accused’s commander to issue a Military Protective Order (MPO). Ensure that victims of sexual assault receive sensitive care and support and are not re-victimized as a result of reporting the incident.  If the victim’s safety is in jeopardy, establish a High-Risk Response Team (HRRT).

d) Require that the victim receives timely access to medical and psychological treatment and make sure the victim was asked if s/he would be willing to have a Sexual Assault Forensic Examination (SAFE).  Facilitate access to all available services and inform the victim of the opportunity to consult with an SVC or legal assistance attorney.

e) Complete and send any required Critical Commander Information Reports (CCIR) through the chain of command within 24 hours for incidents involving sexual assault and harassment.  Strictly limit information pertinent to an investigation to those who have an official need to know.

f) Confirm the SARC entered all reported sexual assaults into the DoD Sexual Assault Incident Database (DSAID) within 48 hours of the report. 

g) Complete the Sexual Assault Incident Response Oversight Report (SAIRO) within eight days of the report.  Send the SAIRO to the installation commander as well as through the victim’s chain of command. (see Army Directive 2015-10)

h) Collaborate closely with the SARC, legal, medical, and chaplain offices and other service providers to provide timely, coordinated, and appropriate responses to sexual assault issues and concerns.

i) Continue to make administrative & logistical coordination for movement of victim to receive care, regardless of whether the victim is cooperating in the investigation or prosecution.

j) If the incident is a domestic incident, refer the victim to FAP victim advocacy.

k) Monitor for incidents of coercion, ostracism, discrimination or reprisals against the victim in the unit, workplace or through social media.

2. The accused’s unit commander must take the following actions in the case of an unrestricted report of sexual assault.

a) Immediately notify CID.  Do NOT conduct an internal command directed investigation of the sexual assault.

b) Complete and send a Critical Commander Information Report (CCIR) through the chain of command within 24 hours for incidents involving sexual assault and harassment.  (see April 2018 Department of the Army Memo “Guidelines and Process for Commander’s Critical Information Requirements (CCIR) Regarding Sexual Assault and Sexual Harassment Incidents”). Strictly limit information pertinent to an investigation to those who have an official need to know.

c) Monitor well-being of the alleged offender, particularly for any indications of suicidal ideation or other unhealthy attempts to cope with stress and ensure appropriate assistance is rendered.

d) Flag any Soldier under charges, restraint, or investigation for sexual assault in accordance with AR 600-8-2, and suspend the Soldier’s security clearance in accordance with AR 380-67.

e) Monitor for incidents of coercion, ostracism, discrimination or reprisals against the victim in the unit, workplace or through social media.

f) Complete and send abbreviated SAIRO report if victim is civilian who is not eligible for SAPR services.

g) Coordinate with victim’s commander and JA for MPO.

3. The victim’s battalion commander must check in with and notify the victim of the status of the unrestricted case at the following times. (see AR 600-20, para 8-5 and DoDI 6495.02, Encl 5)

a) Personally update the victim on the status of the case within 14 calendar days of the report.

b) Ensure the company commander notifies the victim of the status of the case on a monthly basis, usually within 72 hours of the Sexual Assault Review Board (SARB).

c) Ensures the victim is updated on the final case disposition and that the DA Form 4833 is completed.

d) Personally follow up with the victim to make sure the victim’s needs have been addressed within 45 days after final disposition of the case.

4. Commander’s responsibilities - administrative separations.

a) GCMCA is the lowest separation authority for cases involving Soldiers who filed an unrestricted report of sexual assault in the last 24 months.

b) When initiating an administrative separation on any Soldier for any reason (voluntary or involuntary), include on the Notification / Acknowledge / Election of Rights form:

(1) Whether the Soldier filed an unrestricted report of sexual assault in the last 24 months.

(2) Whether the Soldier does / does not believe that this separation is a direct / indirect result of the sexual assault.

c) If the separation appears to be in retaliation for the Soldier filing an unrestricted report of sexual assault consult with the JA.

d) If the separation involves a medical or mental health condition that is related to the sexual assault, to include PTSD consult with the appropriate medical personnel and the JA.

e) If the separation is NOT in the best interests of the Army, the Soldier, or both, consult with the JA.

f) The status of the case against the alleged offender, and the effect of the Soldier’s (victim’s) separation on the disposition or prosecution of the case. If the case is still open, consult with the servicing CID unit and JA.

g) Commanders will initiate the administrative separation of any Soldier convicted of a sex-offense whose conviction did not result in a punitive discharge or dismissal.  Sex-offense is defined as an offense requiring sex offender registration under 42 USC section 16911 or as defined in AR 27-10, Chapter 24. 

(1) Note that if the Soldier was convicted of rape, sexual assault, rape of a child, sexual assault of a child, forcible sodomy or attempts of the above, the Soldier will receive a mandatory minimum of a dismissal or dishonorable discharge (see Article 56(b), UCMJ).

(2) If the separation authority approves retention of an enlisted Soldier, the separation authority will initiate separation under the Secretarial plenary separation authority under AR 635-200, para. 5-3.

5. Commander’s responsibilities – Documenting and reviewing (AR 600-37; AD 2013-21).

a) Commanders (O-5 or higher) will screen the record brief of current and incoming Soldiers for court-martial convictions, nonjudicial punishment or punitive administrative actions for sex related offenses.  The purpose is to ensure commanders are aware of the history of sex-related offenses of Soldiers within their formations.

b) Any court martial or punitive administrative action (including but not limited to reprimand, admonishment or censure at any level of command), nonjudicial punishment or court-martial conviction for a sex-related offense must be placed in the Soldier’s permanent record in the Army Military Human Resources Record (AMHRR).  The SJA must draft a memorandum identifying the offense as a sex-related offense, coordinate to receive the accused’s matters, then send a packet to HRC for processing of an assignment consideration code (ACSO) which will be placed in the Soldier or Officer’s ERB/ORB.

c) Any OCONUS Soldier convicted of a sex-offense whose conviction did not result in a punitive discharge or dismissal shall be reassigned to a CONUS or permitted OCONUS location (e.g. Hawaii, Alaska, Puerto Rico).  Soldiers convicted of a sex-offense shall not be assigned or deployed on temporary duty (TDY), temporary change of station (TCS), or permanent change of station (PCS) to non-permitted OCONUS locations.

d) Sex related offenses include any offense under Article 120, Article 120a, Article 120b, Article 120c, or an attempt under Article 80, UCMJ.  Sex-offense is defined as an offense requiring sex offender registration under 42 USC section 16911 or as defined in AR 27-10, Chapter 24.

6.    Initial Disposition Authority

a)    Baseline DoD policy dictates that disposal of cases resulting from allegations of rape, sexual assault, forcible sodomy and attempts are withheld to the Brigade commander level, O-6 and above.  A commander authorized to dispose of cases involving an allegation of sexual assault, otherwise known as the sexual assault initial disposition authority (SA-IDA), may do so only after receiving the advice of the servicing judge advocate.  See DODM April 20, 2012: Withholding Initial Disposition Authority under the Uniform Code of Military Justice in Certain Sexual Assault Cases.  Additionally, any collateral misconduct of the victim directly related to the report of sexual assault will also be withheld to the victim’s O-6 Brigade commander.

b)    According to AR 600-20, paragraph 8-5, disposal of “sexual assault” cases are withheld to the Battalion commander level, O-5 and above.  Because rape and sexual assault are withheld to the O-6 commander, allegations of aggravated sexual contact, abusive sexual contact and attempts would be the type of sexual assault cases within the O-5 commander’s initial disposition authority. 

H. Reporting Options:  There are two possible reporting options for victims of sexual assault.  The victim may make an unrestricted report of sexual assault which results in a CID investigation, collection of a Sexual Assault Forensic Examination (SAFE), provision of counseling, medical/ mental health care services and opportunities for transfer to another unit.  The victim may also make a restricted report of sexual assault.  A restricted report does not result in a CID investigation while allowing the collection of the SAFE, counseling, medical and mental health care services.  The restricted report will not allow for other services requiring command knowledge, such as an expedited transfer. 

1. Unrestricted Reporting.  A Soldier who is sexually assaulted and desires medical treatment, counseling, and an official investigation of his/her allegation, may use current reporting channels (e.g., chain of command, law enforcement) or he/she may file a DD Form 2910 with the SARC or the on-call SAPR victim advocate to elect an unrestricted report.  Upon receiving an unrestricted report of sexual assault, the SARC will immediately assign a victim advocate and will notify the installation and immediate commander within 24 hours.  Additionally, with victim’s consent, the healthcare provider shall conduct a forensic examination, which should include the collection of evidence.  Details regarding the incident will be limited to only those personnel who have a legitimate need to know.

2. Chain of Command (CoC) responsibilities.  If any member of the CoC learns of the sexual assault from any source, s/he must report that information to CID.  The CoC includes commanders, non-commissioned officers in the victim’s CoC and civilian supervisors. 

3. Restricted Reporting.  A Soldier or a military dependent 18 years of age or older who is sexually assaulted may, on a confidential basis, disclose the details of his/her assault to specifically identified individuals and receive medical treatment and counseling, without triggering the official investigative process.

a) The following are the only individuals capable of accepting or receiving a Restricted Report: SARC; SHARP Victim Advocate; Healthcare Provider (to include psychotherapists). 

(1) The Restricted Report is officially made when the restricted reporting option is elected on a DD Form 2910, completed and signed by the victim. 

(2) Healthcare personnel who receive a restricted report shall contact a SARC or SHARP VA to ensure that a DD Form 2910 is correctly completed and that the victim is offered SAPR services.

b) Privilege and confidentiality exist with the following individuals: SARC (when acting as a victim advocate in accordance with MRE 514); SHARP/FAP Victim Advocate (MRE 514); DoD SAFE Helpline Staff (MRE 514); Chaplain (MRE 503); Legal Assistance Attorney/SVC (MRE 502); Psychotherapist (MRE 513). 

(1) A chaplain, SVC or legal assistance attorney cannot accept or receive a Restricted Report.

(2) If in the course of otherwise privileged communications, a victim indicates that he/she wishes to file a Restricted Report, then the individual with privilege shall facilitate contact with a SARC or SHARP VA to ensure the provision of services and the completion of the DD Form 2910.

c) SARC Reporting.  The SARC shall report non-PII concerning sexual assault incidents (without any identifying information on the victim or alleged assailant) to the installation commander within 24 hours of the report.

d) If the victim confides in a person who is not in the chain of command and who does not have a designated privilege or confidentiality (i.e. friend, roommate, team member), then according to DoDI 6495.02, the victim may still maintain the option to make a restricted report.  The timing of the Restricted Report filing is crucial.

(1) If the victim elects the Restricted Report option and signs the DD Form 2910 before the SARC is notified by law enforcement or the command, then the victim maintains the Restricted Report and ALL communications with the SARC and VA remain privileged and confidential along with the SAFE kit.

(2) If the victim does not sign the DD Form 2910 before the SARC is notified by law enforcement or the command, then the report must be Unrestricted and law enforcement launches an investigation.

(a) SARC informs victim that the option to file a restricted report is no longer available.

(b) All communications between the victim and SHARP VA will remain privileged except for the minimum necessary to make the Unrestricted Report.

(3) If CoC or law enforcement discovers the sexual assault allegation, an independent investigation is initiated regardless of the status of the report. 

(a) All communications between the victim and individuals without privilege (i.e. friend, roommate, team member) are not confidential and may be disclosed to law enforcement pursuant to the investigation.

(b) If the report is Restricted, then communications between the victim and the SARC and SHARP VA are confidential and no PII may be released to law enforcement.

4.   Converting a Restricted Report to an Unrestricted Report

a) A sexual assault victim may convert from a Restricted Report to an Unrestricted Report at any time.  The victim may NOT convert an Unrestricted Report to a Restricted Report.

b) In cases where a victim elects restricted reporting, the SARC, assigned VA (whether uniformed or civilian), and healthcare providers may not disclose covered communications to law enforcement or command authorities, either within or outside DoD, unless a specified exception applies.  Covered communications are oral, written or electronic communications of personally identifiable information related to the sexual assault, made by a victim and related to the sexual assault to SARC, assigned VA or healthcare provider.

c) If an exception to restricted reporting applies, then the SARC will evaluate the confidential information, and contact the installation SJA office (administrative law attorney) who shall advise as to whether one of the exceptions apply.  In cases of uncertainty or disagreement, the matter shall be brought to the attention of the installation commander for decision utilizing non-PII information. 

d) Improper disclosure of covered communications, improper release of medical information, and other violations of this policy are prohibited and may result in discipline under the UCMJ, loss of credentials, or other adverse personnel or administrative action.

e) The following exceptions authorize a disclosure of a Restricted Report ONLY if SJA consultation has occurred:

(1) Authorized by the victim in writing.

(2) Necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person (ex. multiple reports involving same alleged offender or safety/security exceptions contained in MRE 514).

(3) Required for fitness for duty or disability determinations.  Limited to information necessary to process to those who need to know (Disability Retirement Boards and officials).  There is no obligation to report to law enforcement or command for investigation.

(4) Required for supervision of coordination of direct victim healthcare or services.  SARC, SHARP VA or healthcare provider can disclose specifically requested information to those with an official need to know.

(5) Ordered by a military official (e.g., a duly authorized subpoena in a UCMJ case), Federal or State Judge in a court of competent jurisdiction.  Until determination is made after the SARC/ VA consults with the installation SJA, then only non-PII should be disclosed. 

5. Regardless of whether the Soldier elects restricted or unrestricted reporting, confidentiality of medical information will be maintained IAW current guidelines on Health Information Privacy Portability Act (HIPPA).

6. A victim’s disclosure of his/her sexual assault to persons outside the prospective sphere of persons covered by this policy may result in an investigation of the allegations.

NOTE:  AR 600-20, paragraph 8-2 states that all Soldiers aware of a sexual assault, should immediately (within 24 hours) report.  The paragraph does not direct a specific recipient for the report and the “Victim Confiding in Another Person” provision of DoDI 6495.02 conflicts with that guidance.  Victims who tell another Soldier retain their ability to make a restricted report under the DoD policy.  Commanders should be made aware of the conflict and, in consultation with the JA, establish policies and training in an attempt to reduce the number of unwilling reports.

7. This SAPR policy does not create any actionable rights for the alleged offender or the victim, nor constitute a grant of immunity for any actionable conduct by the offender or victim.  Covered communications that have been disclosed may be used in disciplinary proceedings against the offender or the victim, even if such communications were improperly disclosed.

8. Improper disclosure of covered communications, improper release of medical information, and other violations of this policy are prohibited and may result in discipline under the UCMJ, loss of credentials, or other adverse personnel or administrative action.

9. Confidential statements made by a victim to a SARC/VA for the purposes of facilitating advice or support are privileged under MRE 514.

I.   Expedited transfer of sexual assault victims who file unrestricted reports.  AR 614-200, para. 5-18 November 2017 (enlisted transfers)

1. Soldiers who file an unrestricted report of sexual assault will be informed at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent transfer from their assigned command or base, or to a different location within their assigned command or base.

2. Army policy is that there is a presumption of approval following a credible report of sexual assault.  Commanders and civilian leaders will consider requests for transfer or reassignment in an expedited manner. The commander with the appropriate approval authority must act w/in 72 hours of request.

3. Soldier may request transfer by submitting a DA Form 4187 which includes a CID case number/ civilian investigation reference, or an assignment deletion if the alleged offender is assigned or inbound to the Soldier’s gaining location.  The request must be based on assaults that occurred while the Soldier is assigned to the contemporaneous unit or location and should include a statement from the Soldier explaining why they want to be moved or deleted from assignment, to their commanding officer. Victims are encouraged to include all their concerns in the request to aid the commander in understanding their needs and in making an informed decision.

4. The battalion commander shall make a credible report determination at the time of the request, after considering the advice of their legal advisor and available evidence.  Only credible reports will be forwarded to the approval authorities.  Commanders may consider the following factors in determining whether a transfer or reassignment is appropriate, and, if so, the lowest level of transfer or reassignment that would meet both the needs of the victim and the Army:

      a) Concerns of the victim.

      b) Operational necessity, including situationally unique requirements in deployed areas.

      c) The nature and circumstances of the offense.

      d) The location of the alleged offender.

      e) Potential transfer or reassignment of the alleged offender instead of the victim.

      f) The alleged offender’s status (Soldier or civilian).

      g) Status of the investigation and the potential impact of the victim’s transfer or reassignment on the investigation, future disposition of the allegation and potential prosecution or other adverse action that may be initiated against the alleged offender.

      h) Potential disposition of collateral misconduct.

      i) Any other pertinent circumstances.

5. Approval Authorities

a) Local moves.  Lowest level commander exercising authority over both the losing and the gaining unit.

b) Local moves that cross ACOM, ASCC, and/or DRU. Senior mission commander (SMC) at the installation.  The SMC can also serve as the disapproval authority if the SMC is a GO.

c) PCS moves.  Chief, EPMD, HRC is the approval authority and the Commander, HRC is the disapproval authority.

6. Expedited transfer procedures are not safety transfer procedures.  If there is a threat to life or safety, immediately report to command & law enforcement.

7. Army policy is that there is a presumption of approval following a credible report of sexual assault.  Commanders and civilian leaders will consider requests for transfer or reassignment in an expedited manner. The commander with the appropriate approval authority must act w/in 72 hours of request.

J. Sexual Assault Incident Response Oversight Report (SAIRO) (DoDI 6495.02; Army Directive 2015-10; DTM 14-007 – Expired but good resource)

1. Purpose.  To provide General/Flag officer (G/FO) level commanders with oversight of the local response to sexual assault report from a victim service member or report against a subject service member.  The goal is to assure victim care, visibility and transparency to senior leaders and system accountability.

2. Responsible Commander

a) If the victim is a service member, the victim’s immediate commander prepares and files SAIRO when notified of an unrestricted report or independent investigation.  SARC and CID provide input to the report.  SARC is responsible for providing all victim information required in the SAIRO for unrestricted reports.  The SARC will usually not be responsible for providing victim information for independent investigations as CID will be responsible for providing all information. 

b) If the victim is a civilian and subject is the service member, then the subject’s immediate commander prepares and files an abbreviated SAIRO.

c) If the subject is the responsible commander, then the next highest commander will prepare and file the report.

d) SAIRO is required even if reported sexual assault occurred before enlistment or commissioning.

3. When:  Within the first eight calendar days of the unrestricted report or independent investigation.  Triggers for eight day clock include:

a) When unrestricted report is made to SARC or SHARP VA and DD Form 2910 is completed and signed.

b) Conversion of restricted report to unrestricted report on DD Form 2910.

c) If an independent investigation is started, when CID notifies immediate commander.

4. SAIRO Recipients (only those with a need to know).

a) Installation commander (if incident occurred on or in the vicinity of a military installation)

b) First O-6 and first G/FO in the victim’s chain of command (if victim is a service member)

c) First O-6 and first G/FO in the subject’s chain of command (if subject is a service member)

d)If alleged subject is a possible recipient, SAIRO will go to next highest commander.

5. SAIRO Contents.

a) Incident Data.  May only be obtained through CID, as command directed investigations are prohibited.  No victim PII should be included in the report.

(1) Victim gender, duty status, Service affiliation, assigned unit, grade and current geographic area where the victim is stationed and lives.

(2) Subject gender, duty status, Service affiliation, assigned unit, grade and current geographic area where subject is stationed and lives.

(3) Most serious alleged sexual assault offense.

(4) Location, date and time of alleged sexual assault.

(5) Date victim was referred to the SARC or SHARP VA.

(6) Date offense was reported to CID or other MCIO.

(7) If subject is Service member, then whether the subject has been temporarily moved.

(8) Any other relevant information

b) Advocacy services offered.  Including SAPR advocacy services of a SARC/ SHARP VA as well as SVC.

(1) Confirmation that SARC entered information into Defense Sexual Assault Incident Database (DSAID) within 48 hours.

(2) Description of any circumstance in the response that adversely affected the command’s ability to address the victim’s needs (including timeliness, obstacles to care, retaliation or reprisal).

(3) Before releasing any privileged communications, SARC will obtain victim consent for disclosure and confirm that victim was informed of the ability to speak to a Special Victims’ Counsel (SVC).

(4) Summary of the SAPR services offered.

(5) Date of next SARB or Case Management Group (CMG).

c) Victim’s Immediate Commander Input. 

d) Healthcare. 

(1) Do not include PII or individually identifiable health information.

(2) Provide date when victim was offered medical and mental health care.

(3) Provide date when the victim was offered a sexual assault forensic examination (SAFE) at the appropriate location.  If not offered, explain why.

e) Investigation.  Information provided by CID.

(1) Case number.

(2) Confirmation victim has been provided with DD Form 2701.

f) Safety. Information provided by SARC.

(1) Date safety assessment was conducted and whether there was a need to assemble a High-Risk Response Team.

(2) Date victim was provided with information on MPOs and Civilian Protective Orders (CPO) and whether they were filed.

(3) What safety measures were taken (if in a deployed environment).

g) Expedited Transfers.  If victim is service member, SARC will provide immediate commander assigned to prepare SAIRO report.

(1) Date victim was given information regarding expedited transfers.

(2) A report on whether or not the victim requested an expedited transfer.  If in processing include date of receipt.

h) Legal Services. 

(1) Date eligible victim informed of SVC program.

(2) Confirmation that victim was notified that SVC is not the prosecution and will represent the victim and the victim’s interest through the provision of legal advice and representation.

K. Sexual Assault Review Board (SARB) (DoDI 6495.02, Enclosure 9; AR 600-20, Appendix E)

1. The SARB provides executive oversight, procedural guidance and feedback concerning the installation’s SAPR program. The SARB reviews the installation’s prevention program and the response to any sexual assault incidents. This includes reviewing cases and procedures to improve processes, system accountability and victim access to quality services.

2. The senior commander or designated representative will chair the SARB.

3. SARB Members include:

a) Installation SARC (required)

b) Victim Advocate (as appropriate and deemed necessary by the senior commander)

c) CID Agent

d) SJA (usually an administrative law attorney)

e) Provost Marshal or representative law enforcement

f) Chaplain or representative

g) Sexual assault clinical provider or sexual assault care coordinator

h) Chief, Behavioral Health

i) Other members may be appointed or invited (ex. victim’s commander SVWL, ASAP, SVC)

4. Responsibilities

a) The SARB will convene monthly to review sexual assault cases and facilitate monthly updates to victims within 72 hours of the SARB.

b) The senior commander will send findings through the appropriate channels noting deficiencies in processes and procedures, while recommending improvements for preventing or responding to sexual assault.

c) The senior commander will ask all members whether there has been any retaliation against the victim, the individual who reported, any witnesses, the SARC or VA in any cases.  If so, the incident of retaliation will be reported, tracked at the SARB and the victim’s O-5 Battalion Commander will draft a plan to respond to and address the retaliation.  (AD 2015-16)

d) The senior commander will maintain the integrity of confidential cases and will not use identifying information when discussing cases.

e) The SARB will conduct reviews of MOAs with other Services and civilian agencies regarding SAPR support.

f) Commanders should be careful not to comment on desired outcomes in cases.

L. Collateral Misconduct of Victim.  In unrestricted reported sexual assault cases where there is evidence of collateral victim misconduct (most commonly underage drinking, fraternization adultery, drug use), to prevent the erroneous perception that the Department of Defense views a victim’s collateral misconduct as more serious than the crime of sexual assault, commanders should consider deferring discipline of any victim’s misconduct until all investigations are complete and the sexual assault allegation has been resolved, unless extenuating or other overriding circumstances make delay inappropriate in the judgment of the commander and/or legal counsel. Initial disposition authority for collateral misconduct is withheld to an O-6 with special court-martial convening authority.

1. Additionally, for those sexual assault cases for which command action on victim’s collateral misconduct is deferred, Military Service command action reporting and processing requirements should take such deferrals into consideration and allow for the time deferred to be subtracted from applicable metrics and processing times. 

2. Commanders and judge advocates must also be mindful of any potential statute of limitations when determining whether to defer action.

3. Deferral may be bad trial strategy. A victim whose own misconduct is deferred is subject to attack on the theory that she has complained of sexual assault for the purpose of avoiding punishment for her drinking, or other behavior. If the misconduct is punished beforehand (for alcohol, the routine punishment is generally minimal), then this defense argument is negated. The victim should be consulted, and the pros & cons explained before proceeding with un-deferred collateral misconduct punishment.

4. If the command defers action on the victim’s collateral misconduct until after a court-martial, the command must consider requests for testimonial or transactional immunity for the victim’s testimony.  Testimonial or transactional immunity may only be approved by the GCMCA and only provides immunity from military criminal prosecution.

M. Training and Prevention.  The objective of SAPR training is to eliminate incidents of sexual assault through a comprehensive program that focuses on awareness and prevention, education, victim advocacy, reporting, response, and follow up.  There are four categories of training for the SAPR Program.  The categories are Professional Military Education (PME) training, Unit Level training, Pre-Deployment training, and Responder training. Training is now handled by Mobile Training Teams, arranged through the SHARP/SARC.

1. PME training is progressive and sequential in areas such as (including but not limited to):

a) Initial Entry Training;

b) Pre-commissioning/Basic Officer Leadership Instruction – I (BOLC I) to include ROTC;

c) Captain’s Career Course;

d) Pre-command Course.

e) Unit Level Training.  All Soldiers will attend and participate in unit level SAPR training annually.  Training will be scenario based, using real life situations to demonstrate the entire cycle of reporting, response, and accountability procedures. The I.AM.STRONG campaign is the primary provider of soldier training, which will no longer be presented by the local SARC

f) Responder Training.  Primary responders to sexual assault incidents will receive the same baseline training throughout the DoD, to ensure that any Service member who is assaulted will receive the same level of response regardless of Service component.  SARC & VA training will be provided by TRADOC MTTs. Other first responder components will design their own training. Training should emphasize that coordinating victim support services is a team effort and to be effective all the team members must be allowed to do their job and must understand the role of the others on the team.  First responder agencies include:

(1) Healthcare;

(2) MPs and CID;

(3) Judge Advocates;

(4) Chaplains;

(5) SARCs; and

(6) Victim Advocates

N. Sexual Assault Forensic Examination (SAFE).  The 2014 NDAA mandated that all military treatment facilities have SAFE availability. However, if a DoD healthcare provider is not available, the victim will be appropriately referred to a civilian provider for the forensic examination, if the victim requests such a forensic examination. 

1. Whenever possible, military installations should have established formal memoranda of understanding (MOU) with military facilities or off-base non-military facilities for the purpose of conducting sexual assault examinations. 

2. The SARC or victim advocate will ensure that a victim is aware of any local or state sexual assault reporting requirements that may limit the possibility of restricted reporting, prior to proceeding with the SAFE at the local off-post non-military facility.

O. Restricted Report Case Number (RRCN). 

1. Each Military Service will designate a military agency to generate an alpha-numeric RRCN, unique to each incident, that will be used in lieu of personal-identifying information to label and identify the evidence collected from a SAFE (i.e., Sexual Assault Evidence Collection kit (SAE kit), accompanying documentation, personal effects, clothing). 

2. Upon completion of the SAFE, the HCP will package and label the evidence with the RRCN and notify the service-designated military agency trained and capable of collecting and preserving evidence, to assume custody of the evidence using established “chain of custody” procedures.  MOUs with off-post non-military facilities should include instructions for the notification of a SARC, receipt and application of a RRCN and disposition of evidence back to the military agency.  The RRCN and general description of the evidence shall be entered into a log to be maintained by the military agency.

3. Five year storage period for restricted SAFE evidence. 

a) Thirty days prior to the expiration of the five-year storage period, the military agency shall notify the appropriate SARC that the storage period is about to expire.  The SARC shall notify the victim accordingly. 

b) If a victim does not desire to change to an unrestricted report and does not request the return of any personal effects or clothing maintained as part of the evidence prior to the expiration of the storage period, in accordance with established procedures for the destruction of evidence, the military agency shall destroy the evidence maintained under the victim’s RRCN. 

c) The evidence shall similarly be destroyed if, at the expiration of five years, victims do not advise the SARC of their decision or the SARC is unable to notify a victim because the victim’s whereabouts are no longer known.

d) If, at any time, a victim elects to change their reporting preference to the unrestricted reporting option, the SARC shall notify CID, who will then assume custody of the evidence maintained by the RRCN from the military agency under established chain of custody procedures.

P. Cases Involving SHARP Training and Panel Selection

1. United States v. Rogers, 75 M.J. 270 (C.A.A.F. 2016) - An uncorrected panel member’s erroneous belief that too drunk to remember equals incapable of consent constitutes panel member bias.

2. United States v. Hines, 20131049 (A. Ct. Crim. App. Jul. 24, 2016) – Like US v. Rogers, a panel member held an erroneous belief about the law surrounding consent to sexual acts.  However, the facts were distinguished and the court noted five factors to consider when evaluating the totality of the circumstances in cases where the military judge has denied an implied bias challenge for cause based on a member’s erroneous view of the law: 1. Did the Government cause or endorse erroneous view?; 2. Is the misunderstanding a fundamental principle of law or technical legal misunderstanding?; 3.  Is erroneous view strongly held?; 4. Was erroneous view corrected?; 5. Importance of legal issue to case.

3. United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018) - Gender was improperly used as a criteria for selection of the members of the court-martial.  Four out of the seven panel members were victim advocates, and the reversal of the conviction and dismissal of the charges was found to be an appropriate remedy for panel “tampering” or selection of panel members outside of the Article 25, UCMJ criteria.

VII. Office of the Staff Judge Advocate (OSJA) Victim/Witness Assistance Program (VWAP)

A. Objectives (AR 27-10, paras. 17-4, 17-6 (11 May 2016))

1. Mitigate the physical, psychological and financial hardships suffered by victims and witnesses of offenses investigated by Department of the Army authorities and foster full cooperation of victims and witnesses within the military criminal justice system.

2. Encourage development and strengthening of victim and witness services, consolidate information pertaining to victim and witness services, coordinate multidisciplinary victim/witness services by and through victim witness liaisons (VWLs).

B. Definitions (AR 27-10, para. 17-5 (11 May 2016))

1. Victim:  a person who has suffered direct physical, emotional or pecuniary harm as the result of a commission of a crime in violation of the UCMJ (or in violation of the law of another jurisdiction if any portion of the investigation is conducted primarily by the DoD components), including but not limited to:

a) Military members and their family members;

b) When stationed OCONUS, DoD civilian employees and contractors, and their family members;

c) Institutional entity’s representative (federal, state and local agencies are not eligible for services available to individual victims);

d) Victim under age 18, incompetent, incapacitated, or deceased (in order of preference):  a spouse, legal guardian, parent, child, sibling, other family member, or court designated person; and

e) Includes victims identified as a result of investigations of potential UCMJ violations conducted under the provisions of AR 15-6.

2. Witness:  person who has information or evidence about a crime, and provides that knowledge to a DoD component about an offense within the component’s investigative jurisdiction.  If witness is a minor, includes a family member of legal guardian.  BUT not a defense witness, perpetrator or accomplice.

C. Victim Witness Liaison (VWL)

1. SJA designates in writing.

2. Guides victims and witnesses through the trial process.  Provides services to all victims as a facilitator and coordinator for services, benefits (including transitional compensation) and possibly travel.  Provides services to witnesses, sometimes experts, as a facilitator and coordinator for services, benefits and possibly travel.  Maintains relationship with the local confinement facility and helps coordinate confinement.

3. Ensures victims are notified of their rights and complete DD Forms 2701-2706.

4. The VWL must be perceived as impartial actors in the prosecution process and may work in any department of the JAG office.  The VWL is not part of the prosecution team.

5. The VWL is not a victim advocate.  There is no privilege between the VWL and the victim/witness, and communications are not confidential.

D. Special Victim Witness Liaison (SVWL)

1. The Trial Counsel Assistance Program (TCAP) hires specially trained SVWLs to work with Special Victim Prosecutors (SVP) in the field and serve as the VWL in special cases.  The SVWL’s primary duty is to support victims and witnesses in cases of domestic violence, sexual assault (including Article 120, 120b, and Article 125, UCMJ), and child abuse/molestation. Ideally, the SVWL is present during all phases of the court-martial to ensure the victim understands to the process, and is informed of their rights and resources, and may act as the primary POC for information and updates in special cases.

2. The most important difference between the VWL and the SVWL is that the SVWL works directly for the SVP and is part of the prosecution team.  The SVWL’s notes are not discoverable as they are considered attorney work-product. 

3. The SVWL may or may not provide services to government witnesses/experts, as a facilitator and coordinator for services, benefits and possibly travel.  Will not provide services to defense witnesses.

4. Ensures victims are notified of their rights and complete DD Forms 2701-2706 and coordinate as a facilitator for services, benefits and possibly travel.  Works with the OSJA VWL as a team.

5. The SVWL is not a victim advocate.  There is no privilege between the VWL and the victim/witness, and communications are not confidential.

6. Use of the SVWL varies by installation.  The position description for the SVWL is purposefully broad and the SVP, SVWL and OSJA should tailor the duties of the SVWL to support the special victim needs and caseload of the individual installation.

E. SJA Responsibilities

1. SJA’s are designated as the “local responsible official” and have the following responsibilities:

a) Establish and supervise Victim/Witness Assistance Program (VWAP) within their GCM jurisdiction.  Ensure establishment of local policies and procedures to afford crime victims’ Article 6b rights.

b) Establish a Victim and Witness Assistance Council to extent practicable, at “each significant military installation,” to ensure interdisciplinary cooperation.

c) Designate, in writing, Victim/Witness Liaison (VWL).

(1) Preference for a commissioned or warrant officer or civilian (GS-11 and above).

(2) Exceptional circumstances allow SSG or GS-6 and above.

(3) VWL’s should be outside the military justice section “to the extent permitted by resources.”

(4) To the extent resources permit, SJA’s “should refrain from appointing attorneys as VWL’s.”  If an attorney is appointed, the attorney must explain that there is no attorney-client relationship formed as a result of providing VWL services.

2. ENSURE COMMUNICATION WITH THE VICTIM. Victims have a right to be informed at the earliest opportunity of significant events in the status of the case, and every 30 days following proffer of charges. Keeping victims informed is a requirement of the victim’s bill of rights and is good practice to maintain a cooperative relationship.

3. Ensure Law Enforcement Agencies (LEA) inform victims and witnesses of VWL’s name, location and phone number.

4. TRAINING!  Must ensure annual training is provided to all agencies involved in program.  At a minimum, training will cover victims’ rights; available compensation through federal, state, and local agencies, providers’ responsibilities under the VWAP program, and requirements and procedures of AR 27-10, Chapter 17.

5. Ensure DoD Victim and Witness Bill of Rights/ Article 6b Rights are posted in office of commanders and agencies providing victim and witness assistance.

6. Establish separate waiting areas at courts-martial and other investigative proceedings.  “In a deployed environment, victims and Government witnesses should be afforded a separate waiting area to the greatest extent practicable.”

7. Ensure victims and witnesses are advised that their interests are protected by administrative and criminal sanctions, i.e. obstruction of justice charges, etc., and that victims and witnesses should promptly report any attempted intimidation, harassment, or other tampering to military authorities.

8. Ensure appropriate law enforcement agencies are immediately notified in case where the life, well-being, or safety of a victim or witness is jeopardized by his or her participation in the criminal investigation or prosecution process.

9.Ensure victim’s and witness’ requests for investigative reports or other documents are processed under FOIA or Privacy Act.

10.Ensure DD Forms are distributed/completed.

11.Coordinate with criminal investigative agents to ensure all noncontraband property seized as evidence is safeguarded and returned; ensure victims are informed of applicable procedures for requesting return of property.

F. DD and DA Forms (download at http://www.apd.army.mil/)

1. DD Form 2701, Initial Information for Victims and Witnesses of Crime.

2. DD Form 2702, Court-Martial Information for Victims and Witnesses of Crime.

3. DD Form 2703, Post-Trial Information for Victims and Witnesses of Crime.

4. DD Form 2704, Victim/Witness Certification and Election Concerning Inmate Status.

5. DD Form 2705, Victim/Witness Notification of Confinee Status.

6. DD Form 2706, Annual Report on Victim and Witness Assistance.

7. DA Form 7568, Army Victim/Witness Liaison Program Evaluation.

G. Responsibilities (VWL, trial counsel, or other government representative).

1. VWL (recommended).

a) As soon as possible, but NLT appointment of Art. 32 Preliminary Hearing Officer or referral of charges, ensure victims and witnesses have been provided DD Form 2701 (Initial Information for Victims and Witnesses of Crime).

b) Provide DD Form 2702.

c) Inform victim of the place where the victim may receive emergency medical care and social service support.

d) Inform victims of where they can obtain financial, legal, and other support, including right to file Article 139 claim and right to transitional compensation, if applicable.

e) During investigation and prosecution of crime, will provide victims the earliest possible notice of significant events in the case, to include:

(1) Status of investigation of crime, with limits.

(2) Apprehension of suspected offender.

(3) Decision to prefer or dismiss charges.

(4) Initial appearance of suspect before pretrial confinement hearing or at Article 32, UCMJ investigation.

(5) Scheduling of each court proceeding victim is required or entitled to attend.

(6) Detention or release from detention of offender or suspected offender.

(7) Acceptance of plea of guilty or other verdict.

(8) Result of trial.

(9) If sentenced to confinement, probable parole date.

(10) General information regarding corrections process.

(11) Opportunity to consult with trial counsel concerning evidence in aggravation.

(12) How to submit victim impact statement to Army Clemency and Parole Board.

(13) The VWL will “make reasonable efforts to notify witnesses and representatives of witnesses, when applicable and at the earliest opportunity” of numbers one through ten above.

f) Advise victims and witnesses of protections from intimidation.  See Military Protective Order, Section V and Appendix, below.

g) Act as intermediary between victims and witnesses, when requested, to arrange interviews by defense or government.

(1) Advise victims on property return and restitution.

(2) Notification of victims’ and witness’ employers and creditors.

(3) Witness fees and costs.

h) During trial and investigative proceedings, provide to victims and witnesses:

(1) Assistance in obtaining child care.

(2) Transportation/parking.

(3) Lodging.

(4) Separate waiting area outside presence of accused and defense witnesses.

(5) Translators/interpreters

i) Upon sentence to confinement provide victims (and witnesses “adversely affected by the offender”):

(1) General information regarding post-trial procedures (DD Form 2703).

(2) Prepare DD Form 2704.  Victims and witnesses elect whether they want notification of changes in inmate status. Ensure copy forwarded to confinement facility and ensure offender does not have access to copy of information.

2. Trial counsel.

a) Consult victims concerning:

(1) Decision not to prefer charges;

(2) Decisions concerning pretrial restraint or release;

(3) Pretrial dismissal of charges; and

(4) Negotiations of pretrial agreements and their potential terms.

Note:  Victim does not have veto power over command’s decision on these matters; view is considered, not controlling.

b) Establish separate waiting areas at courts-martial and other investigative proceedings.

c) In coordination with SJA and CMCA, consider making restitution a term and condition of pretrial agreements.  Also consider whether restitution was made when action is taken.

3. Commander, Confinement Facility.

a) Upon entry into confinement facility commander ensures receipt of DD Form 2704 and determines whether victim and/or witness requested notification of changes in confinement status.  If victim and/or witness so indicated, commander will advise of:

(1) Offender’s place of confinement and minimum release date.

(2) Earliest possible notice of:

(a) Clemency/parole hearing dates.

(b) Transfer of inmate to another facility.

(c) Escape, recapture, or other form of release from confinement.

(d) Release from supervised parole.

(e) Death of inmate.

b) Forward DD Form 2704 if inmate is transferred.

c) Protect against disclosure to inmate of victim and witness addresses.

d) Reporting requirements as set forth below.

H. Reporting Requirements.

1. For each calendar year (CY), not later than 15 February of each year, SJA of each command having GCM jurisdiction must report the number of persons who received DD Form 2701, 2702 or 2703 from trial counsel, Victim Witness Liaison (VWL) or designee

a) SJA will obtain data for their reports from subordinate commands attached or assigned to their GCM jurisdiction for military justice purposes, including RC units.

b) Negative reports are required.

c) Use DD Form 2706.

2. Forward report through MACOM channels to Criminal Law Division, ATTN:  DAJA-CL,  HQDA, Office of The Judge Advocate General, 1777 North Kent Street, Rosslyn, VA 22209-2194.

I. Other required reports (Negative reports required). 

1.   Military Police channels report the number of:

a) Victims and witnesses who received DD Form 2701 or 2702 from LEA personnel.

b) Victims and witnesses who were informed of their right (via DD Form 2704 or otherwise) to notification of changes in inmate status.

c) Victims and witnesses who were notified using DD Form 2705.

d) Confinees, by service, in Army facilities about whom victim/witness notifications must be made.

2.   OTJAG Criminal Law prepares consolidated report for submission to DoD Under Secretary for Personnel and Readiness, Legal Policy Office)

J. Evaluation of Victim/Witness Liaison Program

1. SJAs will ensure that each victim and witness in an incident that is prosecuted at a GCM or SPCM, or investigated pursuant to UCMJ, Art. 32, in those cases not disposed of by GCM or SPCM, receives a victim/witness evaluation form.

a.   SJAs will use DA 7568 (Army Victim/Witness Liaison Program Evaluation).

b.   Evaluation forms will be reviewed locally by the SJA and copies forwarded quarterly to Criminal Law Division, ATTN:  DAJA-CL, ATTN:  Victim/Witness Coordinator, Office of The Judge Advocate General, HQDA, 1777 North Kent Street, Rosslyn, VA 22209-2194, by mail or electronically.

K. Anonymous submission requirement for DA 7568 and SJA cover letter. 

1. The evaluation form may be provided to victims and witnesses by hand, by mail or otherwise, but must be returned in an anonymous manner.  AR 27-10, paragraph 18-28d (11 May 2016) suggests the installation of a drop box away from the military justice section or the provision of a pre-addressed envelope or "other anonymous means of return" to victims and witnesses.

2. The recipients of the evaluation form must be advised that the form will be returned in an anonymous manner and cannot be accepted in any other manner.  The evaluation form will be accompanied by a cover letter under the signature of the SJA.  The cover letter will thank the victim/witness for assisting the prosecution, and emphasize the need for a response and the anonymous nature of the response.

L. Other Assistance Available to Victims.

1. Installation assistance.  VWL will assist victim in contacting agencies or individuals responsible for providing necessary services and relief.

a) Command Chaplain.

b) Family Advocacy Center/Army Community Service.

c) Emergency Relief Funds.

d) Legal Assistance, if appropriate.

e) American Red Cross.

f) If victims are not eligible for military services, or where military services are not available, “the VWL will provide liaison assistance in seeking any available nonmilitary services within the civilian community.”

2. Pretrial Agreements - negotiated restitution.

3. Transportation and shipment of household goods. (See JFTR).

4. State and local assistance.

5. Transitional Compensation.  10 U.S.C. § 1059; DoD Instruction 1342.24, Change 1 (16 January 1997); AR 608-1, Army Community Service, (22 December 2016).

a)   Dependent-abuse offenses resulting in separation of service member from active duty or total forfeiture of all pay and allowances pursuant to court-martial conviction or administrative separation.

(1) Applies to cases on or after 30 November 1993.

(2) Applies to voluntary and involuntary separation proceedings (example:  discharge in lieu of trial by court-martial UP Chapter 10, AR 635-200).

(3) Dependent-abuse offenses - conduct by an individual while a member of the armed forces on active duty for a period of more than thirty days that involves abuse of the then-current spouse or dependent child of the member and that is a criminal offense defined by the Uniform Code of Military Justice or other criminal code applicable to the jurisdiction where the act of abuse is committed.  Offenses that may qualify as dependent abuse offenses include but are not limited to sexual assault, rape, sodomy, assault, battery, murder, and manslaughter. 

(4) Dependent Child.  An unmarried child, including an adopted child or stepchild, who was residing with the member at the time of the dependent abuse offense and who is

(a) Under 18 years of age;

(b) Eighteen or older and incapable of self-support because of mental or physical incapacity that existed prior to age 18 and who is dependent on the member for over one-half of the child’s support;

(c) 18 or older, but less than 23, and is a college student and who is dependent on the member for over one-half of the child’s support.

(5) Unborn Child.  An unborn child who was carried during pregnancy when a dependent abuse occurred that resulted in the separation of the Soldier and who was subsequently born alive to the eligible spouse or former spouse is entitled to a dependent share of transitional compensation.

6. Compensation.

a) Duration of payments dependent upon the unserved portion of the member’s obligated active duty service (no less than 12 months, but no more than 36 months).

b) Start-date: 

(1) Date sentence is adjudged if the sentence, as adjudged, includes a dismissal, dishonorable discharge, bad conduct discharge, or forfeiture of all pay and allowances.

(2) If there is a pretrial agreement that provides for disapproval or suspension of a dismissal, dishonorable discharge, bad conduct discharge, or forfeiture of all pay and allowances, then start date is the date of the approval of the court-martial sentence if the sentence, as approved, includes an unsuspended dismissal, dishonorable discharge, bad conduct discharge, or forfeiture of all pay and allowances;

(3) If pursuant to administrative separation, the date of initiation of separation proceedings.

c) Amount of compensation increases with each dependent.  See 38 U.S.C. § 1311(a)(1).

d) Dependent loses payments if remarries or cohabitates with abuser, or is an active participant in the abuse.

e) Payment stops if administrative separation is disapproved.

f) Payment stops if dismissal, dishonorable discharge, of bad-conduct discharge is remitted, set aside, or mitigated to a lesser punishment that does not include any such punishment.

g) Application for transitional compensation:  individual submits request through military service of member.

h) Requires annual certification of entitlement to funds by spouse and dependent children.

i) Payment is from Operation and Maintenance Funds.  Defense Finance and Accounting Service issues the payments, and administrative oversight of the funds (approval of payments and such) is through the Community and Family Support Center (CFSC), a DA level organization.

7. Other benefits –

a) Commissary and exchange privileges for length of time eligible for transitional compensation;

b) Medical and dental care for up to one year for injuries related to dependent abuse offense(s).  Applies to dependents of a member separated due to dependent abuse offense (includes discharge as result of conviction as well as administrative separation).

c) Commanders should ensure that when a Soldier is separated as a result of a dependent-abuse offense that the victim and the offense are clearly specified in the separation action to document the basis for this entitlement (see AR 608-1, app H)

M. Deferral and waiver of forfeitures.

1. Deferral.

a) Accused may request, in writing, deferment of forfeitures.  RCM 1101(c)(2).

b) Accused burden to show “the interests of the accused and the community in deferral outweigh the community’s interest in imposition of the punishment on its effective date [e.g., forfeitures].”  RCM 1101(c)(3).

c) Applies to adjudged forfeitures (Article 57(a)(2), UCMJ; RCM 1101(c)) AND automatic forfeitures (Article 58b(a)(1), UCMJ)).  United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004); United States v. Adney, 61 M.J. 554 (A. Ct. Crim. App. 2005).

2. Waiver of forfeitures.

a) Accused may request waiver of automatic forfeitures (Article 58b, UCMJ) or the CA may waive sua sponte.  Request does not have to be made by accused; may be made by dependents or someone (VWL) on behalf of dependents.

b) The accused’s request should be in writing.

c) Waiver is allowed for a period not to exceed six months and is for the purpose of providing support to the accused’s dependents, as defined in 37 U.S.C. § 401.

d) Factors CA may consider include:  “the length of the accused’s confinement, the number and age(s) of the accused’s family members, whether the accused requested waiver, any debts owed by the accused, the ability of the accused’s family members to find employment, and the availability of transitional compensation for abused dependents permitted under 10 U.S.C. 1059.”  RCM 1101(d)(2). 

e) Waiver of forfeitures is authorized as soon as they become effective; need not wait until action.

 

VIII. SPECIAL VICTIMS’ COUNSEL (SVC) PROGRAM

A. Generally.  The Special Victims’ Counsel (SVC) program was codified in 10 U.S.C. § 1044e, pursuant to the 2014 National Defense Authorization Act (NDAA) section 1716 “Special Victims’ Counsel for victims of sex-related offenses.”  The program provides victims of sex related offenses legal counsel to advise and represent the victim through the court-martial process.

B. Scope of Representation.  Army SVCs are legal assistance attorneys who receive specialized training and are certified by TJAG to represent victims of certain sex related offenses.

1. Sex related offenses include any offense under Article 120, Article 120a, Article 120b, Article 120c, or an attempt under Article 80, UCMJ.

2. Primary responsibility is to provide zealous representation to their clients throughout the full spectrum of the military justice process.

a) Represent the express interests of their client even when interests do not align with the Government.

b) Empower client by fostering victim’s understanding of the military justice and administrative processes of investigation and courts-martial.

c) Represent victims who file both Unrestricted and Restricted Reports.

3. Duration of representation: From initial investigation to convening authority action.

a) Convening authority action includes no action.

b) At a court-martial, final convening authority action on the sentence is considered “initial action” post submission of clemency matters.

4. An SVC may provide the following services (10 USC §1044e)

a) Legal consultation regarding potential criminal liability of the victim stemming from, or in relation to the circumstances surrounding the alleged sex-assault offense and the victim’s right to seek trial defense service (TDS) counsel.

b) Legal consultation regarding the VWAP program, the rights and benefits afforded to the victim, the role of the VWAP liaison and what privileges do or do not exist.  A distinction between the privilege held by an attorney or advocate must be explained in relation to the lack of privilege held by the VWL/ SVWL.

c) Legal consultation regarding the responsibilities and support provided to the victim by the SARC, SHARP VA or domestic abuse advocate (FAP VA) to include any privileges that may exist regarding communications.

d) Legal consultation regarding third-party litigation (against parties other than the United States).

e) Legal consultation regarding the military justice system, including but not limited to:

(1) Roles and responsibilities of the parties/investigators.

(2) Military justice proceedings.

(3) Government’s authority to compel cooperation and testimony.

(4) Victim’s responsibility to testify and other duties to the court.

f) Representing the victim at any proceeding in connection with reporting, investigation and prosecution.

g) Legal consultation regarding eligibility and requirements for services available from appropriate agencies or offices for emotional and mental health counseling and other medical services.

h) Legal consultation and assistance:

(1) In personal civil legal matters (Note that an SVC shall not represent a victim in any civilian proceeding but may provide assistance in accordance with AR 27-3);

(2) In any proceedings of the military justice and administrative process in which a victim can participate as a witness or other party;

(3) In understanding the availability of, and obtaining any protections offered by, civilian and military protection or restraining orders; and

(4) In understanding the eligibility and requirements for, and obtaining, any available military and veteran benefits, such as transitional compensation benefits and other State and Federal victims’ compensation programs.

(5) In all cases in which the victim reports allegations of professional or social retaliation, the SVC will work with local stakeholders to address the retaliation. The SVC will also record the allegations in CIS in a narrative format detailing the nature of the allegation and the disposition or resolution.

i) Legal consultation and assistance in connection with:

(1) Any complaint against the government including any allegation under review by the Inspector General and a complaint regarding equal employment opportunities.

(2) Any request to the government for information, including a request under 5 U.S.C. § 552a, Freedom of Information Act (FOIA) request.

(3) Any correspondence and other communications with Congress.

(4) Such other legal assistance as the Secretary of Defense may authorize in regulations proscribed.

j) In those instances where the victim has a Medical Evaluation Board (MEB) or Physical Disability Evaluation Board (PEB) pending, the Soldiers’ MEB or PEB counsel or other appropriate representative is primarily responsible for advising and representing the victim on these matters. 

C. Eligibility

1. All active duty Army Soldiers who report they are a victim of a sex related offense are eligible for SVC representation. 

a) Soldiers who are on active duty, but were victims of sexual assault prior to enlistment or commissioning are generally not eligible for SVC representation but may be eligible for legal assistance.

b) Soldiers who report they are a victim of sex offenses under State and Federal laws are also eligible for limited SVC assistance.

c) Victims assaulted by foreign military members may be entitled to appointment of a local counsel from the host country, paid for by the victim’s unit.

2. Eligibility for Reserve Component (RC) Soldiers

a) Regardless of duty status, RC Soldiers are eligible for SVC representation if the circumstances of the alleged sex-related offense have a nexus to the military service of the victim.

b) While the victim may receive SVC representation, to assure continuity of medical and mental health care services, the command should complete a Line of Duty (LOD) Investigation.  Commanders can assist the NG or RC member in requesting contractual active duty status (or be brought onto active duty status) to complete an LOD in order to assure continuity of healthcare.

3. Eligibility for Dependents and Other Victims (10 U.S.C. Section 1072)

a) Dependents who report they are victims of a Servicemember are eligible for SVC representation. 

b) Former dependents will be eligible if they were entitled to legal assistance at the time of the offense.

c) All remaining categories of individuals eligible for legal assistance under AR 27-3 or 10 USC 1044 are eligible for SVC representation.

d) Dependent children (under 18 years of age) are also eligible for representation.

4. Eligibility for Members of Other Services

a) The service of the victim dictates the service of the SVC.

b) An Army SVC must get approval to represent a victim from another service, and the victim’s service must decline representation

5. Eligibility for Department of Defense Civilian Employees

a) A civilian employee who is not eligible for military legal assistance, is eligible for SVC representation. (see Army Directive 2017-16).

D. Victim Notification of Right to an SVC

1. The first responsible party to make contact with a victim, to include the SHARP VA, SARC, FAP, criminal investigator, VWL, or TC, will inform eligible victims of their right to an SVC (see 10 U.S.C. 1565b).

2. The victim may decline representation.  However, an initial declination of SVC services does not permanently waive the right to an SVC.  An SVC may be requested at any time throughout the military justice process.

E. Representation Through Military Justice Process

1. If victim has filed an unrestricted report and has retained an SVC, the SVC will serve the SJA, Chief of Military Justice, SDC, CID, the VWL and the SARC/VA/FAP with a notice of representation.

2. The SVC should attend interviews of the victim by the investigators, TC and DC and should ensure that another individual (paralegal or VWL) is present.  Requests by defense counsel to interview the victim must be made through the SVC.

3. The SVC will make regular contact with counsel for the parties to make sure that the victim receives all due notifications and documents upon preferral of charges and upon filing.  (See infra. Sections II, III, V)

4. After preferral of charges, the TC will ensure the SVC’s information is included on the Electronic Docket Request (EDR).

5. SVCs have limited standing to represent victims before Army courts and shall follow all Rules of Court to the same extent as the parties.  According to the SVC Handbook, a victim of a sex assault has a right to be heard through counsel on issues implicating MRE 412 (rape shield), MRE 513 (psychiatrist-patient privilege), MRE 514 (victim advocate-victim privilege), MRE 615 (exclusion of victim from trial) and any other matter where the client’s interest or rights are at stake. 

a) The right to be heard through counsel is affirmed in the language of MRE 412 (rape shield), MRE 513 (psychiatrist-patient privilege), and MRE 514 (victim advocate-victim privilege).  Because a ruling on MRE 615 and any other matter where the client’s rights are at stake can be the subject of a writ of mandamus, it is assumed that the victim retains the right to be heard through counsel on those issues.

b) Article 6b grants all crime victims the right to be reasonably heard at a public hearing concerning the continuation of confinement prior to trial of the accused, a sentencing hearing relating to the offense and a public proceeding of the service clemency and parole board relating to the offense. 

c) LRM v. Kastenberg (see infra Section II) articulated when a victim retains the right to be heard through counsel.  Even though victims are not a party to the litigation, they are not precluded from asserting standing to contest a ruling on a held privilege, as the court stated “a reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel.”

IX. DOMESTIC ABUSE AND THE FAMILY ADVOCACY PROGRAM

A. Department of Defense Instruction (DoDI) 6400.06 (Domestic Abuse Involving DoD military and Certain Affiliated Personnel) defines “domestic abuse” as domestic violence, or a pattern of behavior resulting in emotional/psychological abuse, economic control, and/or interference with personal liberty that is directed to a person who is: a current or former spouse; a person with whom the abuser shares a child in common, or a current or former intimate partner with whom the abuser shares or has shared a common domicile.

B. Department of Defense (DoD) Policy.  “Domestic violence is an “offense against the institutional values of the Military Services of the United States of America.”  Leaders at all levels within the DoD must “take appropriate steps to prevent domestic violence, protect victims, and hold those who commit it accountable.”

1. Like the Sexual Assault Prevention and Response Program, the domestic violence policy does not create any actionable rights for the alleged offender or the victim, nor constitute a grant of immunity for any actionable conduct by the alleged offender or victim, nor does it create any form of evidentiary or testimonial privilege.   

C. Domestic abuse is a pervasive problem, not only in society, but also in the military.

1. In the ten-year period from FY 01-13, the military averaged 12.04 substantiated incidents of spousal abuse per 1000 couples.  See Department of Defense Family Advocacy Program, Department of Defense Family Advocacy Program Fiscal Year 2013 Data, available at http://www.ncdsv.org/images/DoD_ChildAbuseAndDomesticAbuseDataTrendsFY2001-2013_5-20-2014.pdf (last visited 30 October 2018).  Abuse includes acts of physical violence and/or sexual violence and/or emotional abuse.  Overall, incidents of abuse experienced a significant downward trend: 16.5 substantiated incidents of spousal abuse per 1000 couples in FY 01 compared to 11.1 in FY 13.  Also in the same time period, FY01-13, the military averaged 5.85 substantiated incidents of child abuse per 1000.  These rates were fairly constant throughout the ten-year period.

2. Data from FY 08-17 on spouse abuse include only those incidents involving currently married individuals. Either the victim or the offender may have been an active duty Service member or the civilian spouse of an active duty Service member. In FY17, the rate of reported spouse abuse per 1,000 couples was 24.5, which is an increase of 5 percent compared to the rate in FY16 (23.4).  However, this is just the reporting rate.  In FY17, the unduplicated rate of victims of spouse abuse was 9.1 per 1,000 couples, which is actually a decrease of 5 percent from the FY16 rate (9.3).  The DoD is also collecting statistics on intimate partner abuse, which was added to capture incidents involving (1) a former spouse, (2) a person with whom the victim shares a child in common, or (3) a current or former intimate partner with whom the victim shares or has shared a common domicile. In such cases, the victim or the offender may have been an active duty Service member or civilian.

D. Army policy for domestic abuse.

1. Army Regulation 608-18, The Army Family Advocacy Program (RAR 13 September 2011), establishes Army policy for handling domestic violence issues.

2. DA takes a cooperative approach with local communities to:

a) Identify, Report and Investigate child and spouse abuse cases;

b) Protect abused victims from further abuse in both emergency and nonemergency situations; and

c) Provide services and treatment to Families in which child abuse has occurred.

E. Responsibilities. 

1. At DA level, the Assistant Chief of Staff for Installation Management (ACSIM) has responsibility for the Family Advocacy Program.

2. The Commander, U.S. Army Community and Family Support Center develops policy and programs.

3. Installation Commanders:

a) Establish programs for preventing, reporting, and treating spouse and child abuse as per AR 608-18 (13 Sept 2011). http://www.apd.army.mil/pdffiles/r608_18.pdf

b) Appoint an installation Family Advocacy Program (FAP) Manager on orders to manage the program and ensure compliance with regulation.

c) Review and approve FAP funding.

d) Submit consolidated FAP budget requirements through MACOM for forwarding to Community and Family Support (CFSC).

e) Designate a reporting point of contact (RPOC) and ensure a 24-hour emergency response system.

f) Establish mandatory counseling and educational programs under the FAP for Soldiers involved in substantiated abuse.

g) Establish voluntary educational and counseling programs and encourage maximum participation.

h) Consider Case Review Committee (CRC) recommendations when taking or recommending disciplinary or administrative actions on Soldiers or civilians involved in abuse.

i) Direct development of a Memorandum of Agreement (MOA) with Child Protective Services (CPS) and other civilian agencies adjoining Army installations.

j) Appoint members of the CRC, the Family Advocacy Committee (FAC), and the Fatality Review Committee (FRC) by written order and name for a minimum 1-year appointment.

k) Review CRC and FAC minutes and FRC recommendations.

l) Establish training to ensure that all subordinate commanders and senior enlisted advisers (E-7 to E-9) are briefed on FAP within 45 days of assuming command, and annually thereafter.

4. Unit Commanders:

a) Attend spouse and child abuse commander education programs designed for unit commanders.

b) Schedule time for Soldiers to attend troop awareness briefings.

c) Be familiar with rehabilitative, administrative, and disciplinary procedures relating to abuse.

d) Report and investigate suspected abuse to RPOC.

e) Direct Soldier to participate in FAP assessment.

f) Attend Case Review Committee (CRC) presentations when unit Soldiers involved.

g) Encourage Soldier cooperation in Family Advocacy Programs (also ensuring that Soldiers are properly advised of Article 31 rights).

h) Provide written no-contact orders, as appropriate; counsel Soldiers; and take other actions, as appropriate, regarding compliance with civilian orders of protection.

i) Support and comply with CRC recommendations to maximum extent possible.

j) Consider CRC recommendations before taking administrative or disciplinary action.

k) Notify CRC chairperson when reassigning Soldiers or moving family members who are involved in treatment for abuse.

l) Encourage participation of civilian family members in treatment programs.

m) Be aware of Lautenberg Amendment issues.

F. The Family Advocacy Program

1. Army policy is to prevent spouse and child abuse, to protect those who are victims of abuse, to treat those affected by abuse, and to ensure personnel are professionally trained to intervene in abuse cases.  Commanders have authority to take appropriate disciplinary or administrative action, and the FAP will promote public awareness within the military community and coordinate professional intervention at all levels within the civilian and military communities, including law enforcement, social services, health services, and legal services.

2. The FAP is designed to break the cycle of abuse by identifying abuse as early as possible and providing treatment for affected Family members.  Key players and responsibilities include:

a)   FAP Manager (FAPM) - works for the director of Army Community Services on-post.  The FAPM has numerous responsibilities, among them:

(1) Coordinates all FAP efforts to ensure compliance with regulation.

(2) Ensures that all abuse reports from ACS are forwarded to the RPOC.

(3) Central installation POC for all FAP briefing or training requests.

(4) Supervises ACS prevention staff.

(5) Provides liaison with civilian and military service providers.  Has lead responsibility for developing and coordinating an installation MOA.

(6) Assesses the special FAP needs of military families on installation and in surrounding communities.

(7) Identifies prevention and treatment resources and submits budget requests.

(8) Develops training programs, provides statistical reports.

b)   The Family Advocacy Committee (FAC):

(1)  The FAC is the multidisciplinary team that advises installation commander on FAP policy and procedure.

(2)  The FAC is chaired by the garrison or base support battalion commander or designee.

(3)`The FAC is composed of the following members:

(a)  FAPM

(b)  Chief, SWS/CRC chairperson

(c)  Pediatrician or other MD

(d)  Community Health Nurse (ad hoc)

(e)  DENTAC commander or representative

(f)   Provost Marshall or senior representative

(g)  CID representative.

(h)  SJA or representatives (CRC representative and the victim/witness coordinator)

(i)   ASAP clinical director or senior representative

(j)   Child and Youth Services coordinator

(k)  Installation Chaplain or representative

(l)   Installation Command Sergeant Major

(m)  Public Affairs Officer

(n)  Consultants (e.g. school liaison officers, child protective services, and local court representative).

(4)  The FAC meets at least quarterly.

(5)  The FAC identifies trends requiring a command or community response, coordinates civilian and military resources, facilitates an integrated community approach to the prevention of child and spouse abuse, develops community, command and troop education prevention programs, publicizes how to report abuse, and addresses administrative details.

c)   Case Review Committee (CRC):

1) The CRC is a multidisciplinary team appointed on orders by the installation commander and supervised by the medical treatment facility (MTF) commander.

2) The CRC is ordinarily chaired by the Chief, Social Work Services.

3) The unit commander exercising UCMJ authority over the alleged abusers will be invited to attend when the case involves one of his/her personnel.

4) The CRC tracks and evaluates cases of reported abuse.

(a) The CRC should determine if the cases are substantiated or unsubstantiated.

(b) The standard of review is a preponderance of the evidence.

(c) A majority of the CRC members present must vote to substantiate.

5) The CRC meets monthly; each case is reviewed at least quarterly.

6) The CRC determines whether civilian courts should intervene.

7) The CRC determines whether to recommend removal of children from home.

8) The CRC recommends corrective measures.

9) The CRC briefs the commander on status of case.

10) CRC recommendations, such as treatment, foster care, etc., do not preclude criminal or adverse administrative action against a Soldier.

G. Reporting Options and requirements

1. Restricted Reporting Policy for Incidents of Domestic Abuse

a)   The DoD is committed to ensuring victims of domestic abuse are protected, treated with dignity and respect, and provided support, advocacy, and care.  DoD policy also strongly supports effective command awareness and prevention programs and law enforcement and criminal justice activities that will maximize accountability and prosecution of perpetrators of domestic abuse.  To achieve these dual objectives, the DoD policy prefers that personnel report suspected domestic abuse incidents promptly to activate both victims' services and accountability actions.  However, a requirement that all domestic abuse incidents be reported can represent a barrier for victims hoping to gain access to medical and victim advocacy services without command or law enforcement involvement. 

b)   In order to address these competing interests, the Department of Defense issued an instruction, DoD Instruction 6400.06 providing victims of domestic violence two reporting options:  unrestricted reporting and restricted reporting.  Also see Army Regulation 190-45, para. 4-15 for Military Police procedures for restricted and unrestricted reporting of domestic violence incidents.

1)    Unrestricted Reporting.  Victims of domestic abuse who want to pursue an official investigation of an incident should use current reporting channels, e.g., chain of command, Family Advocacy Program (FAP), or law enforcement.  Upon notification of a reported domestic abuse incident, victim advocacy services and FAP clinical services will be offered to the victim.  Additionally, at the victim's discretion/request, the healthcare provider shall conduct any forensic medical examination deemed appropriate.  Details regarding this incident will be limited to only those personnel who have a legitimate need to know.

2)    Restricted ReportingIn cases where an adult victim elects restricted reporting, the victim advocate and healthcare providers may not disclose covered communications (defined in the policy memorandum) to either the victim's or offender's commander or to law enforcement either within or outside DoD, except as provided by exceptions within the policy memorandum.

(a)  Restricted reports must be made to one of the following individuals:

(1) Victim advocate;

(2) Healthcare provider (defined in the policy memo);

(3) Supervisor of victim advocate.

(b) Exceptions to Confidentiality.  In cases in which victims elect restricted reporting, the prohibition on disclosing covered communications is waived to the following persons when disclosure would be for the following reasons:

(1) Named individuals when disclosure is authorized by the victim in writing.

(2) Command officials and law enforcement when necessary to prevent or lessen a serious and imminent threat to the health or safety of the victim or another person.

(3) FAP and any other agencies authorized by law to receive reports of child abuse or neglect when, as a result of the victim's disclosure, the victim advocate or healthcare provider has a reasonable belief that child abuse has also occurred.  However, disclosure will be limited only to information related to the child abuse.

(4) Disability Retirement Boards and officials when disclosure by a healthcare provider is required for fitness for duty for disability retirement determinations, limited to only that information which is necessary to process the disability retirement determination.

(5) Supervisors of the victim advocate or healthcare provider when disclosure is required for the supervision of direct victim treatment or services.

(6) Military or civilian courts of competent jurisdiction when a military, Federal, or State judge issues a subpoena for the covered communications to be presented to the court or to other officials or when required by Federal or State statute or applicable U.S. international agreement.

(7) Other officials or entities when required by Federal or State statute or applicable U.S. international agreement.

H. Reporting Requirements.

1. Report Point of Contact (RPOC).  AR 608-18, Para. 3-3:

a)   Designated by installation commander as a central POC.

b)   Normally the MTF emergency room or MP Desk.

c)   Manned 24 hours.

d)     Publicly disseminate on an “ongoing basis.”

2.Who must report suspected abuse?

a)   All Soldiers, civilian employees and members of military community should be encouraged to report known or suspected cases.

b)   Law enforcement, medical, social work and school personnel, Family Advocacy personnel, Child Youth Services personnel, and psychologists must report.

          c)   Commanders must report.

3.Commanders will report allegations of abuse involving their Soldiers to the RPOC.

I. Records of Reported Abuse.

1. The US Medical Command, Fort Sam Houston, maintains an Army-wide, centralized data bank containing a confidential index of victim-based reported spouse and child abuse cases – Army Central Registry (ACR).  Used to assist in the early identification, verification, and retrieval of reported cases of spouse and child abuse.

2. Must be substantiated spouse and child abuse.

a)   The standard used by the Case Review Committee – a preponderance of the evidence available indicates abuse occurred. 

b)   Distinguish the standard used by CID in titling decisions:  credible information exists that a crime was committed and this person did it.    

3. CRC chairperson will initially notify the unit commander within 24 hours after receiving any report of spouse or child abuse.

J. Protecting alleged victims

1. Removal of Children from Home.

a.   Medical Protective Custody AR 608-18, para. 3-20.  If the child is properly at the MTF, child may be taken into medical protective custody as follows:

1) Obtain parental consent, if possible.

2) If consent is not given, ask whether the child suffers from abuse or neglect by a parent to the extent that immediate removal from the home is necessary to avoid imminent danger to the child’s life or health.

3) The treating physician makes the initial determination.

4) Approved by MTF commander.

5) Unit commander will be notified.

b.   Children cannot be removed from a home, school or child care facility unless a bona fide medical emergency exists.  Coordination with civilian authorities may be appropriate.

c.   Foster Care.

(1)  Generally, need parental consent or order from state or foreign court with jurisdiction.

(2)  U.S. - seek court order and work with the local child protection service even if parental consent is given.

(3)  Foreign Country - Coordinate with host nation authorities.

d.   Emergency situations.  The installation commander may authorize if abuse is substantiated and child at risk of imminent death or serious bodily harm, or serious mental or physical abuse.  

K. Military Protective Orders (MPOs).

1. In unrestricted reporting cases, commanders shall execute the following procedures regarding MPOs DoDI 6495.02 (28 March 2013):

2. Require the SARC or the SHARP VA must inform sexual assault victims protected by an MPO, of the option to request transfer from the assigned command.

3. Notify the appropriate civilian authorities of the MPO.

4. Place the MPO in the National Crime Information Center (NCIC).

5. Advise the person seeking the MPO that the MPO is not enforceable by civilian authorities off base.

6. Complete DD Form 2873, “Military Protective Order (MPO)” and provide to the victim(s) and the alleged offender(s).

7. Definitions:

a)   Domestic violence: An offense under the US Code, the UCMJ, or state law that involves the use, attempted use, or threatened use of force or violence against a person of the opposite sex, or a violation of a lawful order issued for the protection of a person of the opposite sex, who is:

1) A current or former spouse;

2) A person with whom the abuser shares a child in common; or

3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.

b)   Child Abuse: The physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.  It does not include discipline administered by a parent or legal guardian to his or her child provided it is reasonable in manner and moderate in degree and otherwise does not constitute cruelty.

8. Commanders will:

a) Issue MPOs when necessary to safeguard victims, quell disturbances, and maintain good order and discipline while victims have time to pursue issuance or enforcement of protective orders through the civilian courts.

b) Use DD Form 2873 for MPOs.

c) Provide distribution for DD Form 2873 as listed on the form.

9. Issues for commanders to consider:

a) May want to limit SSN and address of victim in Block 2 of the form.

b) Higher commanders may want to establish a level of authority for issuance of MPOs . . . should it be company or battalion level?

Note the comprehensive nature of protections and limitations in the MPO: prohibits all direct and third-party contact, e-mail or telephonic contact; requires mandatory counseling; requires surrender and/or disposal of both government and privately-owned weapons.

L. Lautenberg Amendment

1. Department of Defense Implementation:

a)   Memorandum, Assistant Secretary of Defense, Force Management Policy, Subject: Interim DoD Policy on Domestic Violence Amendment to the Gun Control Act (22 Oct 1997).

b)   Message, 151100Z Jan 98, Headquarters, Dep’t of Army, DAPE-MPE, subject: HQDA Message on Interim Implementation of Lautenberg Amendment (15 Jan. 1998). 

2. Message, 311108Z Oct 97, Headquarters, Dep’t of Army, DAJA-LA, subject: Interim Guidance on Lautenberg Amendment Issues (31 Oct. 1997).

3. Message, 211105Z May 99, Headquarters, Dep’t of Army, DAPE-MPE, subject: HQDA Guidance on Deployment Eligibility, Assignment, and Reporting of Solders Affected by the Lautenberg Amendment. 

4. Memorandum, Under Secretary of Defense for Personnel and Readiness, Subject: Department of Defense Policy for Implementation of Domestic Violence Misdemeanor Amendment to the Gun Control Act for Military Personnel (27 Nov. 2002). 

5. Final DA Implementation: Message, 221927Z October 2004, Headquarters, Dep’t of Army, DAPE-MPE, subject: HQDA Message on Final Implementation of the Lautenberg Amendment to the Gun Control Act of 1968.

6. AR600-20, ch.4-22 (6 November 2014)

7. JAGCNet site for Legal Assistance:  https://www.jagcnet2.army.mil/LegalAssistance#

8. Basic Provisions.

a) 18 U.S.C. § 922(d) prohibits the transfer of “any firearm or ammunition to any person whom you know or have reasonable cause to believe . . . has been convicted in any court of a misdemeanor crime of domestic violence.”

b) 18 U.S.C. § 922(g) prohibits “any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to receive any firearm or ammunition which has been shipped in interstate or foreign commerce.”

c) Violations of either prohibition are punishable by 10 years confinement, $250,000 fine, or both.  18 U.S.C. § 924(a)(2).

d) 18 U.S.C. § 925 formerly exempted “any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof.”  This “federal exemption” has been eliminated for individuals “convicted in any court of a misdemeanor crime of domestic violence.”

e) What is a “Misdemeanor Crime of Domestic Violence?” 18 U.S.C. § 921(a)(33). 

(1) The person was convicted of a crime classified as a misdemeanor in the jurisdiction where the conviction was entered.

(2) The offense had as an element the use or attempted use of physical force, or threatened use of a deadly weapon. This is the only required element.

(a) U.S. v. Hayes, 555 U.S. 415 (2009): in a prosecution for violation of the Gun Control Act, the court held that the underlying misdemeanor need only include an element of violence. To obtain the Gun Control conviction, however, the government must also prove beyond a reasonable doubt that the victim of the misdemeanor was a domestic partner.

(b) U.S. v. Smith, 56 M.J. 711, 714 (A.F. Court Crim. App. 2001): look behind the misdemeanor violence conviction to find relationship of the victim; see also U.S. v. Shelton, 325 F.3d 553, 562 (5th Cor. 2003):  the predicate offense need not include an element identifying the defendant/victim relationship.

f) The offender was at the time of the offense:

(1) A current or former spouse, parent or guardian of the victim;

(2) A person with whom the victim shared a child in common;

(3) A person who was cohabiting with or has cohabited with the victim as a spouse, parent or guardian of the victim;

(4) A person who was similarly situated to a spouse, parent, or guardian of victim.

g) The convicted offender was represented by counsel, or knowingly and intelligently waived the right to counsel.

h) If entitled to have the case tried by jury, the case was actually tried by a jury or the person knowingly and intelligently waived the right to have the case tried by a jury.

i) The conviction has not been expunged or set aside, or the convicted offender has not been pardoned for the offense or had civil rights restored, unless the pardon, expungement, or restoration of civil rights provides that the offender may not ship, transport, possess, or receive firearms.

9. Dep’t of Defense and Dep’t of Army Response.

a)   Interpretation.

(1)  Conviction of a misdemeanor crime of domestic violence does not include a summary court-martial conviction or nonjudicial punishment under Article 15.

(2)  The law does not apply to crew served weapons or major weapons systems (tanks, missiles, aircraft, etc.).

(3)  The law applies to all other Army issue and privately owned firearms and ammunition.

(4)  The Army policy applies worldwide (including hostile fire areas).

(a) There is no “military exception” to Lautenberg.

(b) Pursuant to the 27 November 2002 DoD Policy Memorandum, felony crimes of domestic violence are now considered qualifying convictions for Lautenberg Amendment purposes.

10. AR 600-20, 4-22:

a)   Senior mission commander must:

(1) Ensure immediate implementation of the message.

(2) Display the message outside unit arms rooms and all facilities in which Government firearms or ammunition are stored, issued, disposed, or transformed.

(3) Inform Soldiers that they have an affirmative and continuing obligation to inform their superiors if they have, or later obtain, a qualifying conviction.  DD Form 2760 shall be used for this purpose.  Soldiers will also be informed of the use immunity provisions of DD Form 2760 (neither the information nor evidence gained from filling out the form can be used in any prosecution against a Soldier for past violations of the Lautenberg Amendment).

(4) Ensure that company-level commanders collect completed DD Form 2760s and file in local MPRF.

(5) Ensure that local pre-command courses inform company-level commanders of their obligations.

(6) Implement procedures to track domestic violence arrests and convictions off-post.

11. Reporting Requirements.  All Soldiers with qualifying convictions must be identified and reported to ensure compliance with the law.

12. Commanders who have reasonable cause to believe there is a qualifying conviction should take action to investigate.  An investigation may be initiated by ordering a Soldier to complete DD Form 2760.

13. Soldiers who have or believe they have a qualifying conviction should be referred to a legal assistance attorney for advice.  Legal assistance attorneys can assist in seeking pardon or expungement of convictions.

14. Soldiers will be given a reasonable time to seek expungement or pardon for a qualifying conviction.  Commanders can extend up to one year for that purpose. Factors to consider are in AR600-20, 4-22(8).

15. If a Soldier has a qualifying conviction, or there is reasonable cause to believe he has one, the commander will immediately retrieve all government-issued firearms and ammunition and advise the Soldier to consult with a legal assistance attorney on the lawful disposal or sale of privately-owned firearms or ammunition.

16. Personnel policies.

a)   Utilization.  Soldiers with qualifying convictions:

(1)  Must be detailed to meaningful duties that do not require bearing weapons or ammunition.

(2)  May be reassigned to TDA units that deny them access to weapons and ammunition.

(3)  May not be appointed or assigned to leadership, supervisory, or property accountability positions that would require access to firearms or ammunition.

(4)  May not attend any service school where instruction with firearms or ammunition is part of the curriculum.

(5)  Must be counseled that inability to complete service schools could impact future promotion and retention.

b)   Mobilization/Deployment.  Soldiers with qualifying convictions are not mobilization assets and are nondeployable for missions requiring possession of firearms or ammunition.

c)   Assignment.

    (1) Lautenberg Soldiers are not eligible for OCONUS assignments.

(2) OCONUS active and AGR Soldiers will complete their tours.

(3) Soldiers will not be curtailed from OCONUS assignments.

(4) For purposes of this message, OCONUS does not include Alaska, Hawaii, or Puerto Rico.

d)   Retention.

    (1) The Army does not have a specific “Lautenberg Chapter.”

(2) Bar to reenlistment

(3) No waivers for enlistment

(4) Commanders may separate Soldiers based on the underlying conduct that led to the qualifying conviction or for the conviction itself.

(5) Soldiers may be temporarily accommodated pending a bar to reenlistment or involuntary separation. Must be assigned ETS not more than 12 months from notice of conviction.

(6) Inability to perform certain missions due to a qualifying conviction may be appropriate comments for evaluation and efficiency reports.

(7) Soldiers will not be given a waiver for enlistment or reenlistment. 

(8) Soldiers with qualifying convictions are not eligible for indefinite reenlistment.

(9) Soldiers who have reenlisted for options requiring a CONUS PCS will proceed to new assignment.

(10) OCONUS Soldiers will receive new assignment instructions from HRC.

(11) Soldiers who have reenlisted for retraining in an MOS where instruction includes weapons or ammunition training will be deleted from assignment instructions and may request voluntary separation.

17. Officers.  Officers may request REFRAD or submit an unqualified resignation.  RC officers not on active duty may submit an unqualified resignation or be recommended for involuntary separation.

18. Reporting Requirements.

a)   Active Army.  All Soldiers will be identified at nondeployable and added to the nondeployable total under the code ‘LA.’

b)   Reserve Components.  The ARNG Directorate will report for Army National Guard.  USARC will report for USAR.  IRR, standby reserve, and retired reserve not subject to reporting requirement.

19. USR.  Commanders will continue to report non-deployable personnel under this policy on the USR.

M. Prosecuting Domestic Violence

1.  On 1 January 2019, pursuant to the 2018 NDAA, the UCMJ will be amended to include a specific punitive article addressing domestic violence. 

2.  Article 128b:  Domestic Violence

a) Any person who—

(1) commits a violent offense against a spouse, an intimate partner, or an immediate family member of that person;

(2) with intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member of that person—

(A) commits an offense under this chapter against any person; or

 (B) commits an offense under this chapter against any property, including an animal;

(3) with intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member of that person, violates a protection order;

(4) with intent to commit a violent offense against a spouse, an intimate partner, or an immediate family member of that person, violates a protection order; or

(5) assaults a spouse, an intimate partner, or an immediate family member of that person by strangling or suffocating;

Shall be punished as a court-martial may direct.

3. A conviction for a violent offense against a spouse, intimate partner or immediate family member will result in an increased maximum confinement time for the violent offense.

     4. Strangulation and suffocation will also be considered aggravated assaults under Article 128.

 

 

APPENDIX A

Commander Must Do Items

1.   Ensure victim safety (MPO, safety transfer of victim, etc.)

2.   Immediately notify CID

3.   Immediately notify SARC

4.   Immediately notify higher-level command

5.   Notify SJA

6.   Notify victim of right to SVC (if not already done)

7.   Notify victim in unrestricted report case of right to request expedited transfer

8.   Through order to subordinates ensure:

a) The protection of victim privacy including limiting incident information to personnel with need to know

b) Personnel are reporting incidents of retaliation

9.   Complete Sexual Assault Incident Response Oversight (SAIRO) report within 8 days

10. Battalion Commander conducts initial victim update brief within 14 days of report

11. Updates victim within 3 days of SARB/CMG (at least monthly)

12. Victim’s commander attends SARB/CMG

13. Complete DA Form 4833 after final disposition

14. Battalion Commander conducts final victim brief within 45 days after final disposition

The actions in the following list are to be taken in the event of receiving a report of sexual assault. Although the commander has significant leadership responsibility for actions after a report of sexual assault, not necessarily all of the actions listed below will be taken by the commander personally. This list is non-inclusive. Commanders must review AR 600-20, AR 27-10, DoDI 6495.02, the Commander’s Legal Handbook, and the SHARP Guidebook along with other pertinent guidance regarding sexual assault to ensure they are aware of all requirements.

Victim’s Commander

 

 

 

Appendix B

Critical Time Standards – Sexual Assault

 

 

 

 

 

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