by Kathleen Gilberd

On January 2, President Obama signed the National Defense Authorization Act of Fiscal Year 2013 (“NDAA”), infamous in civil rights circles because it allows indefinite detention of US citizens based on suspicions of supporting terrorism. On the other hand, this year’s NDAA contains a record number of provisions on military sexual assault which, while primarily band-aid measures, will be significant in preventing or responding to assaults. Much of the credit for these provisions goes to the Service Women’s Action Network (“SWAN”), which conducted a vigorous lobbying campaign.

One new provision, section 578, seeks to eliminate retaliatory discharges by requiring that a general or flag officer to review and concur in administrative separations of members who have made an unrestricted (non-confidential) report of sexual assault, to ensure that the discharge is not retaliatory. Review is required for any involuntary discharge occurring within one year after an unrestricted report, if the member requests review on the ground that she or he believes the discharge was retaliatory. An implementing DoD policy is to be presented to the Committees on Armed Services no later than 180 days after the date of enactment of the NDAA. The policy becomes effective on that date and will apply to members who are “proposed to be involuntarily separated from the Armed Forces on or after that date.”

Policy to address sexual harassment

Section 579 of the Act requires DoD to establish a policy and plan for prevention and response to sexual harassment, an issue often overlooked in discussion of sexual assault. The policy must include training for all members on prevention of harassment, mechanisms for reporting harassment, a means for anonymous reports, and a mechanism for responding to incidents of harassment, “including through the prosecution of offenders.”

The Secretary of Defense must submit to the Committees on Armed Services a report setting out the policy within one year of enactment of the NDAA. While this is to be done in consultation with the services and the DOD Equal Opportunity Office, the section gives no indication of how the new program will fit with the existing policies on sexual harassment, handled through the Equal Opportunity system. The section also includes a requirement for DoD collection of information on substantiated incidents of sexual harassment, to be included in annual sexual assault reports.

This increased emphasis on sexual harassment, with its linkage of harassment and assault issues, represents an important step forward. Previously, only the Army had developed a joint Sexual Harassment and Assault Response and Prevention Program (SHARP), and it is to be hoped that the other services will follow suit.

Required surveys and training

Several provisions call for increased training around sexual assault and surveys of command climate on the issue. Under section 570 of the NDAA, which amends 10 U.S.C. 481, workplace and gender relation surveys will now include sexual harassment and discrimination, and sexual assault, linking these issues in reviewing command climate problems. Section 574 requires special training for commanding officers on sexual assault.

Section 572 includes requirements of command climate assessments regarding sexual assaults when a new commander assumes command and at least annually thereafter, including an opportunity for members of the command to express their opinions “regarding the manner and extent to which their leaders, including commanders, respond to allegations of sexual assault and complaints of sexual harassment and the effectiveness of such response.” It also includes a requirement that information about resources for complaints, such as hotline numbers and websites, be posted and widely disseminated, and a requirement for a general educational campaign to notify members about their rights regarding correction of military records after any retaliation for making a report of sexual assault or sexual harassment.

Augmented reporting required

Under section 575 the DoD will be required to include greater detail in annual reports on sexual assaults, including reasons for any dismissal of charges, character of discharge where an accused is administratively discharged or allowed to resign, any prior offense or admission to the service on a waiver for a sexual offense, branch of service of accused, involvement of alcohol in the offense, and specific punishment given at non-judicial punishments.

Reports will also be expanded to include the number of requests for transfer by victims, analysis of trends in the cases, analysis of training and response carried out by training commands, and analysis of specific factors that may have contributed to sexual assault during the year, with recommendations on ways to eliminate or reduce the incidence of those factors. These requirements will be added to annual reports beginning in 2014.

Independent Review Panel Created

Section 576 requires the Secretary of Defense to establish an independent panel to review and assess systems used to investigate, prosecute and adjudicate adult sexual assault and related offenses. The Secretary will also set up a panel to conduct an independent review of judicial proceedings involving adult sexual assault and related offenses since the amendments to the UCMJ mandated by sec. 541 of the 2012 NDAA. Both panels are to make recommendations for improvements.

According to section 572 the DoD is to “modify its sexual assault policy” within 180 days of enactment of the NDAA by adding, among other things, a requirement that service secretaries establish a record on the disposition of all unrestricted reports of sexual assault, whether that disposition is court-martial, discharge, or any other action, and a requirement that any member convicted of a covered sexual offense who does not receive a punitive discharge at court-martial be administratively discharged.

No enlistment waiver for sex-abuse or -assault offenders

Section 523 mandates a prohibition on enlistment waivers for felony sexual offenders, barring waivers for those convicted of felony rape, sexual abuse, sexual assault, incest or “any other sexual offense.”

Section 572 requires that records of unrestricted reports include all documentary information collected regarding the case (not just investigators’ reports), note of the punishment imposed, if any, any adverse personnel action taken, referrals for the subject of the investigation such as counseling or drug counseling. Further, disposition records must be maintained for a period of 20 years. Appropriate information from the reports is to be included in the Defense Sexual Assault Incident Database, and restricted (confidential) reports (DD form 2910) will be retained for 50 years from the date of signing or the period of time required for unrestricted reports in DTM 11-062, “Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault,” or any successor policy, whichever is longer.

Pursuant to section 573 “special victim capabilities” are to be established in each service to investigate, prosecute and provide support for victims of child abuse, serious domestic violence, and sexual offenses. This will include special training for selected investigators from the military criminal investigative agencies, judge advocates, victim witness assistance personnel and administrative paralegal support personnel, to ensure effective worldwide response for sexual assault complaints. An initial capability is to be available within each service within one year of the enactment of the NDAA.

Section 571 of the NDAA amends 10 U.S.C. chapter 1209, section 12323 to create authority to retain reservists on active duty after assaults for line of duty (“LoD”) determination on the member’s request. Service Secretaries may order retention until completion of LoD determinations. Members are to be informed of this option as soon as practicable after they report a sexual assault.

If the member is already in reserve status and a LoD has not been completed, the member may request return to active duty until completion. The Secretary “may order” active duty in both instances. Requests must be decided within 30 days of the date they are made; if a request is denied, the member may appeal to the first general officer or flag officer in the member’s chain of command, and that appeal must be decided within 15 days of the date of appeal.

It remains to be seen how the provisions described in this article will be carried out in practice. We encourage counselors and attorneys to share their experiences with these provisions through On Watch.