Military Sexual Violence

A Guide to Sexual Assault and Sexual Harassment Policies in the U.S. Armed Forces for Servicemembers, MSV Survivors and Their Advocates

By Kathleen Gilberd

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Table of Contents

Kathy Johnson, Jim Klimaski, Jon Pinkus and Brad Thomason assisted in editing this publication. Rena Guay contributed proofreading and digital production.
Introduction

While sexual assault and sexual harassment have long been serious problems in the armed forces, in recent years they have become epidemic. DoD’s own reports estimate that over 26,000 servicemembers, both men and women, were assaulted in 2012. The reports also show that many members are afraid to report assaults or harassment — often out of fear of command retaliation — and that when reports are made, they are often ignored or retaliation does, in fact, occur.

This publication gives an overview of the policy for reporting sexual assault and harassment, along with remedies for retaliation and harassment — critical information everyone in the military should have before they need it. It is written for assault and harassment victims/survivors, but it is just as useful for lay counselors or attorneys assisting victims in securing their rights.

Because of the increasing attention to this problem, public outrage, and congressional scrutiny, this area of military law is currently changing.  Before taking action, we recommend consulting one of the groups listed under the Resources section, or visit our website for any recent policy changes. The groups we’ve listed can also provide referrals to military counselors or attorneys to assist a victim in making a complaint and avoiding reprisals. Updates on military sexual assault policy are also posted on our website at nlgmltf.org

Useful Regulations on Sexual Assault

Department of Defense: DoD Directive 6495.01 (PDF), Sexual Assault Prevention and Response (SAPR) Program and DoD Instruction 6495.02 (PDF), Sexual Assault Prevention and Response Program Procedures

Army: AR 600-20 (PDF), Army Command Policy, Chapter 8, “Sexual Assault Prevention and Response Program”

Navy: SECNAVINST 1752.4B (PDF), Sexual Assault Prevention and Response

Marine Corps: MCO 1752.5B, Sexual Assault Prevention and Prevention Program

Air Force: Air Force Policy Directive 36-60 (PDF), Sexual Assault Prevention and Response Program and Air Force Instruction 36-6001 (PDF), Sexual Assault Prevention and Response Program

NOTE: Regs in this area are subject to update; check MLTF’s web site for the latest links. If you are reading on paper; visit website for digitized version with links:  www.nlgmltf.org or www.militarylawhelp.com

Sexual Assault Policy

All servicemembers, men and women, should become familiar with the sexual assault policy, whether or not there’s an immediate need. By becoming familiar with the policy, the correct military procedures, and some sources of help, you can protect not only yourself but other servicemembers.

The Department of Defense defines sexual assault as follows:

“For the purposes of this Directive and SAPR [the Sexual Assault Prevention and Response Program] awareness training and education, the term “sexual assault” is defined as intentional sexual conduct, characterized by use of force, threats, intimidation, abuse of authority, or when the victim does not or cannot consent. Sexual assault includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual conduct that is aggravated, abusive, or wrongful (to include unwanted and inappropriate sexual contact), or attempts to commit these acts. “Consent” means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent.” (DoD 6495.01, Encl. 2, sec. E2.1.13.)

 

Basics of the Policy

DoD policy requires that all commands take action to prevent sexual assaults, to punish offenders and to treat survivors with dignity and with respect for their privacy. Several years ago a DoD-level Sexual Assault Prevention and Response Office (SAPRO) was established, with parallel offices in each of the service branches. These offices are supposed to oversee service-wide education programs to prevent assaults. Each local command must have a Sexual Assault Response Coordinator (SARC) and a Sexual Assault Victim’s Advocate (SAVA or VA) to respond to reports of sexual assault. Largely because of Congressional pressure, the policy has been updated and expanded repeatedly.

Despite these policies and programs, assaults are still commonplace, with many commands ignoring or downplaying them. Some commands use creative methods to claim that assaults didn’t really occur, and some harass or punish those who report assault.

Sexual assault is punishable under the Uniform Code of Military Justice (UCMJ). Article 120 covers rape, aggravated sexual assault and similar offenses. Forcible sodomy (oral or anal sex) is punishable under Article 125. Some offenses are crimes under Article 134, the general article. Congressional and DoD policy encourage courts-martial of assaulters, but convening authorities have a great deal of discretion in deciding whether, and how, to punish them. As a result, some assaulters just receive non-judicial punishment under Article 15 of the UCMJ (called captain’s mast in the Navy and office hours in the Marine Corps), some are given administrative discharges, and some receive administrative reprimands instead of disciplinary action. Some, of course, receive no punishment at all.

The sexual assault policy has been improved in the last few years, but it still has weaknesses, and commands are not consistent in enforcing it. The Military Law Task Force (MLTF) urges anyone who has been assaulted to consider reporting the assault and to get legal assistance and personal support as soon as possible — if you are safe, even before making a report to the military. Help is available from the Task Force and other groups listed in the resource section of this document. These groups can help you use the military’s assault reporting system and military services more effectively, and can help to protect you against reprisals or harassment for making reports. Support is also available from local rape crisis centers.

 

Reporting Sexual Assault

The current policy on sexual assault is designed to encourage survivors to report assaults, allowing them to make confidential (restricted) reports or non-confidential (unrestricted) reports. Only with unrestricted reports can the assault be investigated and the assaulter be prosecuted. Either way, if you report a sexual assault, a SARC or Victim’s Advocate should respond at once to help you get immediate medical care and any needed follow-up care and counseling. They should explain restricted and unrestricted reporting and your rights. They should tell you that you have the right to consult a military attorney, called Special Victims Counsel (SVC), and also that you can use a civilian victim’s advocate. Both the SARC and the SAVA are supposed to assist in maintaining as much privacy for you as possible, whether the report is restricted or unrestricted.

Although under current regulations the SARC or Victims Advocate must offer to provide information and help, you are not required to accept them. You have no obligation to speak with either a SARC or a SAVA, and they should leave if you make that desire known. While these personnel can be helpful, remember that most Victims Advocates have limited experience and training on these issues and regs, and are generally performing collateral (additional) duties to their primary MOS or rate. They bring as much or as little support to the job as their own character and incentive require. They are not advocates in the legal sense and are not likely to argue on your behalf if the command or investigators ignore your rights. But SAVAs are supposed to provide all the information you need in order to make decisions about the case and to be your own advocate.

Health care providers, SARCs and Victims Advocates are required to respond when you make a report. If you’ve made an unrestricted report, an investigator should respond as well. Under the DoD Directive, sexual assault cases are to be designated as “emergency cases” requiring expedited response and medical treatment, regardless of whether or not physical injuries are evident.

Unfortunately, one important person is left out of this first-response team — an attorney. The policy doesn’t trigger automatic advice or assistance from a JAG. But whether you make a restricted or unrestricted report, you should be told by the SARC or SAVA that you have the right to consult with a JAG under a new special victim’s counsel (SVC) program, and it is valuable to do so, whether or not you have civilian legal help. Like civilian attorneys, JAGs can give you advice about your rights and intervene with the command if the policy isn’t followed or if the proper level of confidentiality is not maintained. The program is new, and varies a little from branch to branch, so it is not yet clear how much assistance and representation these specially-trained JAGs will be able to provide.

 

Restricted Reporting

You have the right to make a restricted (confidential) report, which is done by reporting the assault directly to a SARC, Victims Advocate or health care personnel. Health care personnel include “persons assisting or otherwise supporting healthcare providers in providing healthcare services,” such as administrative personnel in medical treatment facilities. Some branches of the service have added to this list — the Marine Corps uses Uniformed Victims Advocates in addition to the Victims Advocates available through its family services programs. Chaplains may be able to receive restricted reports, though the DoD regulations are unclear on this and some chaplains may vary in their interpretation of religious confidentiality and privilege.

A restricted report provides the greatest privacy, as only the individuals mentioned above, and a SVC if you want one, should know that you have been assaulted. While the CO will be told that an assault has occurred, he or she should not be given your name or that of the assaulter. But this confidentiality also means the assaulter will not be investigated or prosecuted unless independent evidence exists.

Your report won’t be restricted if the command learns you have told the “wrong” person about the assault — anyone other than a SARC, Victims Advocate, health care person, SVC or chaplain. A report to military law enforcement personnel or other command personnel will normally be reported in full to the CO. Civilian law enforcement agencies often forward their reports to your command or base/ship security, and confidentiality is lost. If you tell a roommate, friend or co-worker about the assault, and the information comes to the command’s attention, the privacy of your restricted report will be lost. And if the command receives information about the assault from an independent source (for example, a witness or a friend of the assaulter), it may take action on the basis of that information.

When you report an assault, the SARC, Victims Advocate or medical personnel are required to ask you to sign a “Victim Reporting Preference Statement” (DD Form 2190). The form explains your rights with restricted and unrestricted reports, the limits of restricted reporting, and some of the circumstances in which you might lose confidentiality. SARCs and SAVAs are allowed to encourage you to make an unrestricted report, which the military favors, but are not supposed to pressure you to do so.

With restricted reporting, you receive full medical and psychological care. You can request (or refuse) a “sexual assault forensic exam” (SAFE), or rape kit, to document the assault. The information and evidence you give will be identified by a number rather than your name. Physical evidence must be retained for five years, and documentary evidence (such as the sexual assault report form) must be kept for 50 years.

You can change a report from restricted to unrestricted at any time within a year, so some servicemembers choose to file a restricted report to start and then take time to consider their options. However, once a report is designated as unrestricted, it cannot be changed to restricted.

With a restricted report, you are not required to talk to investigators or other law enforcement personnel, or to anyone from the command. If information wrongly travels to supervisors, division officers, or others in the command, though, they may want to question you. Similarly, investigators or your command may want to question you if they hear anything at all about the assault from other sources. You do not have to answer their questions or respond to their comments. You can ask the Victims Advocate, SARC or SVC to stop any unwanted questioning or comments.

It’s important to remember that there are exceptions to restricted reporting, and what starts out as a restricted report may become unrestricted without your permission. If you talk to others about the assault, either while reporting it or afterwards, and the command becomes aware of this, your restricted report may turn into an unrestricted one. If the command receives independent evidence of the assault, it can review the case and take disciplinary action. In addition, SARCs may disclose information to the command if they feel that it is necessary “to prevent or lessen a serious and imminent threat to the health or safety of the victim or another person.” (DoD 6495.01, section E3.1.8.2) And health care providers may reveal information to the CO if they feel there is “any possible adverse duty impact related to the victim’s medical condition and prognosis.” (DoD 6495.01, section E3.1.10)

 

Unrestricted Reporting

An unrestricted report may be made to anyone.  If you report the assault to military law enforcement personnel or to someone in your unit with any authority at all, they should notify the SARC as well as the command. The SARC or Victims Advocate should respond immediately with the same assistance as in a restricted report and should advise you of your right to talk with a SVC lawyer. You’ll be asked to fill out the same Victim Reporting Preference Statement. Information about the report will be provided to your CO and to your branch’s military criminal investigative organization (MCIOs, which include CID, OSI, and NCIS). Under current regs, these agencies, and not your command, should conduct the investigation of the assault. Many commands have a hard time understanding this, and think it is their job to question you and others about the assault. You do not have to cooperate with their efforts.

With unrestricted reporting, you can ask the command for some protection from your assaulter. The SARC or Victims Advocate, as well as the SVC, should explain the process for requesting a military protective order to keep the assaulter away from you, and the possibility of moving or transferring you or the assaulter for your safety — and he or she should assist you in making the request to the command. Thanks to a recent congressional change, you have the right to request a transfer within or outside of your unit, “so as to reduce the possibility of retaliation against the member for reporting the sexual assault or other offense.”

The command is required to respond to a request that you be transferred within 72 hours, though it isn’t required to grant the request. If it doesn’t, then you can appeal to higher command, which must also respond within 72 hours. This process is set out in DoD Instruction 6495.02. It includes a presumption in favor of transfer following a “credible” report of sexual assault, though commands are required to advise you about the potential career implications of a transfer. If you encounter difficulty with this, a SVC or civilian legal help may be useful in persuading the command to provide necessary protection. Under a new policy, you may request that the assaulter be transferred away from you, instead. Granting or denying this request is also up to the command.

Although an unrestricted report gives you less confidentiality than a restricted report, the policy still requires that your privacy be respected. Information about the assault is supposed to be limited to those with a need to know.  Unnecessary and repetitive questioning is not allowed under the regs, and the regs say that gossip and rumors should be dealt with firmly. The SARC and CO are responsible, in theory, for making sure that information about the assault is shared only on a need-to-know basis. A note of caution: some commands interpret this very broadly, assuming that senior enlisted personnel and officers in your immediate chain of command should be informed, along with personnel or admin officers, and maybe the chaplain and corpsman, and so on. You can sometimes limit this problem by stressing to the people who respond to your complaint, and to your command, that you want to keep your privacy.

 

Investigations and Prosecutions

Military criminal investigative services are now charged with investigating sexual assaults; unrestricted reports are to be reported to them as soon as possible. Under MCIO regs, they should investigate all sexual assaults brought to their attention, regardless of the severity of the assault, and they should also investigate any threats made against the survivor. You are not required to cooperate in an investigation, though you should expect to get some pressure to do so.

Reporting a sexual assault and cooperating in legal proceedings can help you protect yourself and others, but it can also be a painful experience, even if the military follows all of the rules.

DoD policy requires specialized sexual assault response training for investigative agencies, commands, and legal personnel. Training materials tell investigators to be sensitive about the trauma caused by an assault and to avoid “re-victimization” with unnecessary, repetitious or humiliating questions. You should not be questioned about unrelated sexual behavior or your personal sexual preferences or orientation. If any of this occurs, or the investigators are hostile, you can halt the interview and demand to speak with a JAG or a civilian attorney or advocate before deciding whether to continue. And you may choose to have a SVC, a civilian attorney, a SAVA or an independent advocate present during questioning. Military investigators or others who violate these provisions of the regs can be subject to disciplinary action.

MCIOs do not decide whether or how to prosecute the offender. Because of a recent change in the policy, most of those decisions are not to be made by your immediate commander, but by the officer over the commander with authority to convene general courts-martial. These officers have wide discretion in deciding whether or how to punish an offender. In some cases, they may decide that the sexual assault report is not “credible” or “substantiated,” and do nothing. Even where complaints are deemed credible, court-martial is only one option available to the command. In some cases, minor punishments such as an Article 15 or administrative action (anything from an administrative discharge to an administrative record entry) may be ordered. Congress has made it clear that it wants cases to go to court-martial, and has placed some limits on command discretion, but has not made court-martial a requirement.

 

Going to court

If the offender is court-martialed or processed for misconduct discharge, you may be asked to testify as a witness. A Victims Advocate, a civilian attorney, or another support person of your choice can accompany you to meetings and interviews with prosecutors (called trial counsel) and to any legal proceedings. Special victims counsel JAG attorneys can also be present, particularly at courts-martial, though the services are still working out what role they can play there. Civilian rape crisis centers often have trained volunteers who can support and advocate for you during investigations and prosecutions. Legal proceedings may be difficult and stressful, and having an advocate through the process may help.

While attorneys for the accused have some leeway in trying to disprove your report, Congressional mandate and SAPR policy should keep them from raising unrelated personal issues or badgering or humiliating you in interviews or in court. Nonetheless, they will normally try to discredit you. It is important to remember here that the prosecutor may not be responsive to your situation and your needs — his or her duty is to prosecute the case, not to protect your interests. Having your own JAG and/or civilian attorney, along with an independent advocate, provides important legal and moral support, and may help to hold the defense attorney and prosecutor to the policy.

Throughout the investigation and legal proceedings, you are entitled to monthly updates from the SARC about the status of the case. If you feel the case is being ignored or handled improperly, you can complain to your command, the general court-martial convening authority, or higher authority. If you testify in a court-martial proceeding, you are also entitled to a copy of the record of trial.

 

Reprisals and Retaliation

Reprisals and retaliation are specifically prohibited under the sexual assault regulations, and under the Military Whistleblower Protection Act(10 US Code 1034 and DoD Directive 7050.06). Nonetheless, these problems are common. Reprisals can range from informal harassment by the assaulter’s friends or the command to poor performance evaluations, involuntary psychiatric evaluations, loss of promotions and even involuntary discharges.

A sexual assault report or investigation may reveal that you violated some regulation or local order prior to the assault (illegal drinking, for example, or violation of barracks’ rules). Information you provide when you make an unrestricted report can be used against you. Under the current policy, commanders have the option to postpone disciplinary action against you for such “collateral” misconduct until the assault case is concluded. CO’s are encouraged to consider this option, but are not required to follow it. And this gives you only a postponement of disciplinary action; the regulations don’t suggest that the command drop legal action against you permanently.

If the command is hostile to you, superiors may exaggerate or invent collateral misconduct, or accuse you of unrelated misconduct in order to give you counseling or non-judicial punishment under Article 15.  This can be both a reprisal for making a report and a way to undermine your credibility (and therefore the credibility of the report you made). In some cases, where commands don’t consider sexual assault reports credible, survivors have been charged with making false official statements. These problems don’t arise in every case, but it is best to be prepared for the possibility that they will.

Reprisals can also include an unfavorable personnel action (such as a poor performance evaluation, inappropriate counseling entries or involuntary separation) or denial of favorable personnel action (such as a promotion or a desirable assignment).

Involuntary discharge can be a form of reprisal in sexual assault cases. It may be a misconduct discharge, based on allegations of collateral misconduct or other alleged misconduct, or may be a discharge for other designated physical or mental conditions (also called condition not a disability) for minor psychological problems. In some cases, victims who develop Post-Traumatic Stress Disorder or other serious psychological conditions as the result of sexual assault are under-diagnosed with adjustment disorders or personality disorders, and administratively discharged without full military benefits. As a result of Congressional action, victims of this form of reprisal are entitled to review of involuntary discharges by a flag or general officer, if discharge proceedings are initiated within a year of an unrestricted sexual assault complaint and they request review on the ground that the discharge is retaliatory.

The sexual assault regulations have specific provisions for complaints against harassment and reprisals. These complaints can be made through the SARC, a SVC, the CO, commanders higher in the chain of command, or the IG. The sexual assault Directive also states that “[v]ictims of sexual assault shall be protected from coercion, retaliation, and reprisal in accordance with DoDD 7050.06 [the whistleblower regulation].” Complaints to the IG made under the Military Whistleblower Protection Act trigger not only an investigation of the reprisals, but also investigation of the underlying sexual assault complaint, if it has not been investigated or the investigation was inadequate or biased. In addition to these complaint procedures, you can complain about reprisals using the methods discussed in the Other Complaint Procedures section, below.

If you are a victim of reprisals or harassment, documentation of the problem is important for any complaint procedure. Civilian advocates often recommend that victims of reprisals keep a journal to record incidents of harassment, including dates and names of harassers and witnesses. Documentary evidence, such as email traffic, should be saved if it shows the harassment or a motive for harassment. Witnesses to harassment or reprisals can be asked to write statements describing what they observed (it is sometimes helpful to have assistance from a SVC or civilian attorney or counselor in preparing witness statements). Such documentation can be submitted with any complaint of harassment.

One of the best ways to protect your safety and your rights is to learn about the sexual assault policy when you don’t need it. You can jot down SARC and other sexual assault prevention hotline numbers and websites. You can find out who the local SARC and SAVA are, and locate civilian legal groups and the closest rape crisis center. If your command is falling down on the job, and not publicizing the policy and training personnel in sexual assault prevention, or hasn’t set up a real SARC and SAVA system, you can request that they do so, make a formal complaint about the problem, or ask a civilian group to complain about it. If the command permits inappropriate language, sexually degrading comments or pictures, or any sort of sexual harassment — an indication that sexual abuse may be tolerated — you can make formal or informal complaints. This pro-active approach will help you if you later need it, and will also help other potential victims of assault.

 

Sexual Harassment

Sexual harassment continues to be one of the most serious problems facing women in the military. Despite an official policy of ‘zero tolerance,’ harassment is often ignored and sometimes condoned in military culture. The Department of Defense (DoD) considers sexual harassment a form of sexual discrimination, prohibited under its Equal Opportunity (EO) policy, which is set out in DOD Directive 1350.2. The Directive defines harassment as:

“[a] form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

“Submission to such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career, or

“Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or

“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.”

Each branch of the service is required to follow DoD policy, and each has regulations to implement the Directive. In theory, local command Equal Opportunity (EO) officers assist in implementing the policy and conducting educational programs about harassment. Information about making complaints and local, service-wide or DoD hotline numbers should be posted at every command. Unfortunately, the policies are not always followed; sexual harassment complaints are sometimes shunted aside, hidden under bureaucratic paperwork, or just ignored; and servicemembers who make complaints may risk official and unofficial reprisals.

DoD 1350.2 says that “the chain of command is the primary and preferred channel for identifying and correcting discriminatory practices,” including sexual harassment. If you have been harassed, EO policy suggests that you to begin by speaking with the harasser to resolve the problem; fortunately, this is not required. When that approach is inappropriate or unsuccessful, the policy encourages requests for help through the chain of command, starting at the lowest level.  (The Navy and Marine Corps call this the informal resolution system, or IRS.) This may work if the command is sympathetic, but may not be worth the effort when the harasser is in the chain of command. In most cases, EO and other complaint procedures are more likely to work, and many survivors of sexual harassment prefer to start with them.

 

Sexual Harassment Complaint Procedures

Your command should have an Equal Opportunity officer whose job is to provide training on sexual harassment issues and (in most services) to assist servicemembers who have harassment or discrimination complaints. This person is likely to be enlisted, rather than an officer, and EO is sometimes collateral duty, rather than the EO officer’s primary MOS or rate. Skill levels, support and interest can vary a great deal from one EO to another. While you may need to contact the EO officer in making or following up on a complaint, he or she should be approached with some caution. There is no confidentiality with an EO, and his or her official responsibility is to the command rather than you. While EOs may be vigorous and supportive advocates, you shouldn’t assume the person is there for you.

Even within the EO system, informal, verbal complaints are favored. EO officers frequently encourage complainants to use them rather than formal complaints. Informal complaints are handled without much paperwork, and often without any formal resolution or action. While they can be helpful if you wish to keep the matter low-key, these complaints don’t always receive careful attention or investigation, and require little or no official action by the command.

Formal sexual harassment complaints are taken more seriously. These are made in writing and they require a written response, so that they create a better record if an appeal or other complaint is necessary. The Army uses DA Form 7279-R for complaints; the Navy uses NAVPERS 5354/2; the Marine Corps has no form; the Air Force uses a Formal Complaint Summary, AF IMT 1587.

The complaint should describe the sexual harassment in detail, with names of the harasser(s) and any witnesses. Documentary evidence and statements from witnesses can also be included. The complaint should explain the result you want from the complaint — this could be anything from a public apology to a transfer for you or (a less likely result) the harasser. It is useful to write out a detailed complaint in advance, attaching witness statements and/or other evidence, instead of sitting down with an EO officer to write out a complaint on the spot. This reduces the chance that the person receiving the complaint will put his or her own spin on the case, or tell you what you can and cannot say. There’s no need to limit your comments to the spaces on the complaint form. A civilian advocate or attorney can help you prepare the complaint, or review it and suggest additions if you have already submitted it.

Complaint procedures vary from branch to branch. It is important to read over the regs for your branch of service for details on procedures and time limits. Complaints should be made within a specific time after the incident (usually 60 days) unless circumstances prevent that. In the Air Force, complaints are made through the local OE officer. In the Army, informal complaints may be made to the Commanding Officer (CO), the IG, chaplain, provost martial, Staff Judge Advocate or others; formal complaints should be presented to the CO in most cases. The Marine Corps recognizes a number of forms of complaint, like IG complaints or Article 138 complaints (see the Other Complaint Procedures section below) in addition to EO complaints.  You can also report harassment and make the initial complaint directly to the DoD Inspector General (IG) hotline, at www.dodig.mil/hotline (or hotline@dodig.mil), or to your service’s IG or sexual harassment hotline.

No matter where a complaint is made, it is usually referred to your command for investigation and resolution — this means your immediate CO, unless he or she is involved in the harassment. The CO should assign an independent officer to investigate the complaint, unless the IG or other agency which received the complaint has assigned its own investigator. In the Air Force, the local EO officer conducts the investigation. Each service sets time limits for investigation and response, and you should receive periodic updates if the investigation is lengthy.

In theory, the investigator should talk to every witness you mention and consider each issue you raise in the complaint. Investigators may also question other witnesses, look into your own truthfulness or conduct, and add their own take to their report. Gathering witness statements and other evidence in advance is one way to avoid misunderstanding or tampering by the investigator or command.

The investigator makes a written report, with findings of fact about the incident and recommendations for corrective action. This normally goes to the CO, who decides whether the complaint is “substantiated” (except in the Air Force, where the EO officer makes this decision). The CO also decides what action to take, if any; he or she is not required to follow the investigator’s recommendations. You are entitled to a redacted (sanitized) copy of the investigator’s findings and recommendations, but not necessarily the underlying investigative report or witness interviews. The branches vary on how much you will be told about the CO’s decision and corrective action.

If you are not satisfied, you have the right to appeal. In most branches, that means taking the complaint to the CO exercising general court-martial convening authority (GCMCA) over the CO handling the complaint. The Air Force keeps the appeal in the EO system, and the Army says the highest appeal is to the GCMCA. But the DoD Directive, which the branches must follow, states that you may make a final appeal to the office of the Secretary of your branch.

Sexual harassment complaint procedures have limited value, particularly if the command is biased. For this reason, you may want to use other traditional military grievance procedures, described in the Other Complaint Procedures section below, instead of or in addition to the EO complaint, to give you more control over the case and its outcome.

 

Retaliation

Servicemembers often decide not to report harassment out of fear of retaliation. This is a real concern — members who file harassment complaints, or even mention the idea, may face “adverse personnel action” such as denial of promotion, poor performance evaluations, or reassignment (allegedly unrelated to the complaint), or face disciplinary action for alleged misconduct. Unofficial harassment — bullying, threats, or even hazing — can also be a problem. Occasionally commands respond with unwanted mental health evaluations. A hostile CO may use psychological problems resulting from the harassment (or invent emotional problems by giving doctors misinformation) to discredit your complaint, affect your career, or create grounds for an involuntary discharge. Outside legal assistance can help to prevent or limit this sort of retaliation.

While reprisals aren’t a given, it is best to be prepared for the possibility. Advocates often suggest that complainants keep a journal; make notes of the time, place and witnesses of any harassment; keep copies of documents and e-mail traffic showing the harassment or improper command actions and attitude; and talk with an advocate or attorney in advance about ways to respond to reprisals.

Reprisals for making, or simply threatening to make, a complaint about sexual harassment are violations of the EO regs, Article 92 of the UCMJ (failure to obey a lawful regulation), and special Military Whistleblower Protection Act policies. You can complain to the EO officer or through the command about the reprisals. The types of complaints mentioned in the Other Complaint Procedures section, such as Article 138 complaints and congressional inquiries, can also be used to protest reprisals and to request withdrawal of any “adverse personnel actions.”

In addition, you can complain to the IG about reprisals under the Military Whistleblower Protection Act(10 US Code Section 1034); its provisions are discussed in DoD Directive 7050.06. The Act and Directive, and regulations in each branch of service, make it illegal for anyone to retaliate because you complained to a member of Congress, the IG, or other officials who should receive reports about violation of regulations (like complaining to an EO officer or your command about sexual harassment). The IG must investigate not only the retaliation, but also the original harassment, if that was not already investigated or the investigation was inadequate or biased. Here, too, documentation and outside assistance are extremely helpful. If the retaliation has affected your career or record, the whistleblower policy allows an expedited petition to the Board for Correction of Military/Naval Records. (Information on the Correction Boards can be found in Chapter 16 of the American Veterans and Servicemembers Survival Guide, available at www.nvlsp.org).

Sexual harassment complaints, and complaints about retaliation, are not simple. Commands sometimes ignore complaints or “solve” them with Band-Aid measures, and the risk of retaliation is real. Complaints require good documentation and determination. But with an independent civilian attorney or advocate and/or help from the organizations listed under the Resources section, complaints can have real impact.

 

Other Complaint Procedures

The military allows for other complaint procedures, which can be used to make sexual harassment complaints (usually along with traditional EO complaints) and can be used to challenge retaliation or reprisals for complaints about sexual assault or harassment.

One such option, if the commanding officer is not part of the problem, is a personal meeting with the CO to discuss the harassment or reprisal; the Navy and Marine Corps call this “request mast.” If the command has no direct “open door” policy, you may need to walk a written request for a meeting up the chain of command. You are not required to tell anyone other than the CO what you want to discuss, and you can simply ignore NCOs’ or lower officers’ attempt to “deny” your request – the right to meet with one’s commanding officer is firmly embedded in military law and tradition. You may also request this meeting “with counsel present,” and bring your attorney or legal advocate to assist you in presenting a complaint.  If you wish, you can give the CO a written complaint, witness statements and/or other evidence. If the CO does not help, you can make the same request to his or her CO, and so on up the chain of command.

Your attorney or advocate, not bound by the chain of command, can write or speak directly to your CO, your CO’s CO, or military headquarters, demanding that the problem be resolved or that the command be investigated for inaction. If higher military authorities find the problem potentially embarrassing, they may take formal action or simply lean on your command to resolve the problem and get your advocate out of their hair.

One very useful option is a request for redress of grievance under Article 138 of the UCMJ. In a 138 complaint, you begin with a letter to your CO, asking him or her to correct the problem of harassment or retaliation within his or her command. It is useful to mention or reference Article 138 in the letter. The letter should state how you have been wronged and ask for specific relief, giving details and attaching any evidence you may have. The CO must respond within a reasonable time, set by the regs. If you are not completely satisfied, or if you receive no response, you then file a formal 138 complaint to the officer with special court-martial jurisdiction over your CO. This complaint should describe your CO’s failure to solve the problem and the problem itself. (The Navy has a parallel procedures when the problem is outside your chain of command, Navy Regulation 1150.)

Article 138s get serious attention because they must be reported to service headquarters and can leave a permanent mark in an officer’s record. This tends to concern COs and, as with a formal EO complaint, makes a good paper trail of your effort to solve the problem through proper channels. 138 complaints sometimes end in a compromise: the complaint may be denied and the officer’s record may remain clean, or the 138 may be partially denied – but you are given part or all of what you requested.

Detailed information about Article 138 complaints can be found at girightshotline.org and nlgmltf.org. This is another area where it is helpful to read the regulations — AR 27-10, Chapter 19, for the Army; JAG INSTRUCTION 5800.7F, the Manual of the Judge Advocate General, for the Navy and Marine Corps; and AFI 51-904 for the Air Force. As with EO complaints, use of an independent advocate or attorney is very helpful.

You have an absolute right to ask a Member of Congress to investigate and stop the harassment or retaliation — this right is protected by the Military Whistleblower Protection Act. This can be very effective if the Congressional office involved is willing to skip or expand the normal inquiry methods and ask your command or military headquarters directly to take the specific action you request. Routine Congressional inquiries are made by Congressional aides, not the Member of Congress; they go only to the military’s Congressional liaison officer and usually ask only for an explanation, not specific action on the problem. The liaison officer checks with the command, gets your CO’s or legal officer’s version of the story, and sends a boilerplate reply to the Congressional office saying that your rights have been respected and all is well. While this is sometimes helpful, and the command will know that an inquiry has been made, a direct request for action from a Member of Congress has much more impact. The Service Women’s Action Network (see the Resources listing at the end of this document)can provide contact info for members of Congress who are particularly concerned about sexual harassment and sexual assault in the military.

In some cases, you may choose to speak to the media, directly or through your advocate, using your name or speaking anonymously. “Going public” places greater pressure on the command to resolve the problem, but it may also result in retaliation, and should be approached with care. Legal assistance is extremely important here. Your right to speak publicly about your case or about problems with your command is set out in DoD Instruction 1325.06, but this Instruction places limits on where, when and how you do so. There are also some limits on what you can say — you cannot reveal classified material, make derogatory remarks about the Commander in Chief, or make threats, for example. An attorney or advocate can help you avoid these problems and, if you want, be present when you speak with the media.

Sexual harassment, sexual assault and retaliation cases can be taken to federal court, where you may ask for corrective action such as a transfer or a removal of retaliatory actions, but not for money damages for pain and suffering. Courts seldom step in unless a servicemember has tried all available administrative remedies, such as an EO complaint, and judges may defer to military discretion about personnel matters. But a court can order the military to enforce its own regulations or order it to do more than the regulations require.

 

Resources on Military Sexual Assault/Harassment

These groups encourage survivors of sexual assault or harassment to obtain assistance from a civilian attorney or military counselor; referrals are available through each group. It is extremely helpful to have independent legal help from the very beginning of the case in documenting the assault or harassment, deciding which complaint procedure(s) to use, preparing a complaint, monitoring the investigation and taking further action if necessary.

 

Military Law Task Force – nlgmltf.org, militarylawhelp.com

The Task Force is a standing committee of the National Lawyers Guild that works to counter military policies that are interventionist, discriminatory and unjust. MLTF provides information and resources on military sexual assault, sexual harassment and related issues. MLTF can put you in touch with independent attorneys or advocates familiar with military law.

Updates and further resources on this topic can be found by visiting our web site at MilitaryLawHelp.com.

Mail: 730 N. First Street, San Jose, CA 95112
Phone: 619-463-2369
Email: email@nlgmltf.org

 

Service Women’s Action Network – servicewomen.org

SWAN also provides information and support for victims of sexual assault and harassment.
Mail: 220 E. 23rd Street, Suite 509, New York, NY 10010
Phone: 646-569-5200
Email: info@servicewomen.org

 

GI Rights Network – girightshotline.org

With local volunteer groups around the country, the GI Rights Network operates a toll-free hotline to provide information about complaints, discharges, and servicemembers’ rights.

Hotline: 877-447-4487
Email: girights@girightshotline.org

 


 About the publisher

The Military Law Task Force of the National Lawyers Guild

The National Lawyer’s Guild’s Military Law Task Force includes attorneys, legal workers, law students and “barracks lawyers” interested in draft, military and veterans issues. The Task Force publishes On Watch as well as a range of legal memoranda and other educational material; maintains a listserv for discussion among its members and a website for members, others in the legal community and the public; sponsors seminars and workshops on military law; and provides support for members on individual cases and projects.

The MLTF defends the rights of servicemembers in the United States and overseas. It supports dissent, anti-war efforts and resistance within the military, offering legal and political assistance to those who challenge oppressive military policies. Like its parent organization, the NLG, it is committed to the precept that human rights are more sacred than property rights.

To join, or for more information, contact us by email or phone (619) 463-2369, or visit our website or social media pages.

www.nlgmltf.org

www.militarylawhelp.com

facebook.com/nlgmltf

twitter.com/military_law

 

 

About the author

Kathleen Gilberd is a legal worker living in San Diego, California. She serves as the Executive Director of the Military Law Task Force and on the board of the GI Rights Network. She also is a member of the advisory board of the Chelsea Manning Support Network and the Fort Hood Support Network. She is a long-time volunteer with the San Diego Military Counseling Project. She has conducted dozens of workshops on GI Rights issues, including Sexual Assault and Sexual Harassment. In 2013, she was honored as the “Service Provider of the Year” by the Service Women’s Action Network. Her website can be found at kathleengilberd.com.

 

 

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