Military Sexual Assault Policy Updates

By Kathleen Gilberd

Published in the Winter 2016 issue of On Watch.

The recently-enacted 2016 National Defense Authorization Act (NDAA; Public Law 114-92) includes a number of new policy provisions on military sexual assault, most of them designed to facilitate changes made in prior Authorization Acts.

Section 531 of the 2016 NDAA expands and details a victim’s right to submit a petition for a writ of mandamus to the military Court of Criminal Appeals (CCA). The section amends Article 6b, subsection E, of the UCMJ to allow such a petition when the victim believes rights afforded under the following are violated during a preliminary hearing (Art. 32) or court-martial:

• 6, UCMJ (which includes other victim’s rights provisions)
• 32, UCMJ
• Military Rule of Evidence (MRE) 412, which concerns admission of evidence of a victim’s sexual background
• MRE 513, regarding the psychotherapist-patient privilege
• MRE 514, regarding the victim advocate-victim privilege
• MRE 615, covering exclusion of witnesses

Further, if the victim of an offense under the UCMJ is subject to an order to submit to a deposition, notwithstanding his or her availability to testify at court-martial, the victim may petition the CCA for a writ of mandamus to quash the order.

These petitions for writ of mandamus are to be forwarded directly to CCA by procedures to be prescribed by the President, and “to the extent practicable, shall have priority over all other proceedings before the court.”

Section 532 of the NDAA amends 10 USC 1044e(a)(2) to allow civilian employees of the Department of Defense (DoD) who are not eligible for military legal assistance under 1044(a)(7) access to military Special Victims Counsel (SVC) if they are victims of a sex-related offense.

Section 533 amends 10 USC 1044e(b) to expand the services available to military sexual assault victims from SVCs. Under the new provision (a new paragraph (9)), SVCs may provide legal consultations and assistance with “any complaint against the Government,” including matters under review by an Inspector General and equal opportunity complaints. SVCs may also assist in making requests to the Government, including FOIA requests, as well as “any correspondence or other communication with Congress.” It’s worth noting that under the first form of assistance, counsel could aid in preparing and submitting complaints under Article 138 of the UCMJ, often an effective tool against command harassment or inaction.

Section 534 requires timely notice to victims of sex-related offenses of the availability of SVC assistance, by adding a new paragraph (2) to 10 USC 1044(e)(f). Except in exigent circumstances defined by the Secretary of Defense (and the Secretary of the Department in which the Coast Guard is operating), victims shall be notified of the right to SVC prior to any interviews by military criminal investigators or trial counsel (prosecutors), and prior to requests for statements from the victim about the offense. Under current regulations, victims should be notified of this right at the time they are presented with the right to make a restricted (confidential) or unrestricted report.

Section 535 requires improvements in the SVC program, including establishment of baseline training requirements for SVCs, assignment of SVCs to locations maximizing the opportunity for in-person communication with clients, establishment of effective means of communication for situations in which in-person communication is not feasible, and creation and use of performance standards to measure effectiveness of the SVC program and client satisfaction with the program.

Section 536 amends 10 USC 1565b(b) by adding a new paragraph (3) to provide additional confidentiality for those making restricted (confidential) reports of sexual assaults. In states requiring reporting of the names of sexual assault victims or alleged offenders to the state or local law enforcement, those local provisions would not apply unless necessary to “prevent or mitigate a serious and imminent threat to the health or safety of an individual.” “State” in this section includes the District of Columbia, Puerto Rico, the Northern Mariana Islands and territories or possessions of the US.

Section 538 is designed to improve prevention of and response to sexual assaults with male victims. The Secretary of Defense and service Secretaries are mandated to develop a plan to improve work in this area. The plan must ensure that the issue is directly and more comprehensively included in sexual assault training, including “how certain behavior and activities, such as hazing, can constitute a sexual assault.” The plan must also include methods to evaluate differences in the medical and mental health-care needs of male and female victims, and the best treatment regimens for those needs. In addition, the plan must have “data-driven decision making” to improve prevention and response programs; goals for the program; information about victimization of men to be included in awareness materials and communication with servicemembers; and guidance for medical and mental health providers, among others, on gender-specific distinctions in sexual assault cases and appropriate care regimens.

Section 539 requires the Secretary of Defense to develop a strategy to prevent retaliation (to be defined by DoD) against servicemembers who report sex-related offenses or intervene on behalf of victims. The strategy is to include, at a minimum, bystander intervention programs that emphasize the importance of guarding against retaliation; DoD and service policies to protect victims and interveners; and additional training for commanders on ways to eliminate beliefs and attitudes that lead to retaliation.

Section 540 requires the service Secretaries to provide regular sexual assault prevention and response training to all commanders of Senior ROTC units, as well as professors of military science, senior military instructors, and civilian administrators and instructors of Senior ROTC.

Section 541 will require retention of all investigative records regarding sexual assault cases for 50 years; this had been required for some investigative records by the 2012 NDAA, but the current section expands it to all elements of investigative files. The provision takes effect no later than 180 days from the enactment of the 2016 NDAA.

Under Section 542, the Comptroller General is mandated to submit a report to Congress on Army National Guard and Army Reserve handling of assault cases. The report will examine the extent to which the Guard and Reserve have appropriate sexual assault policies in place and provide medical and mental health care to victims of assaults. It will also determine the extent to which Reserve and Guard service may pose challenges to prevention of and response to sexual assault. The Comptroller General’s office is authorized to prepare further reports on these issues as it deems appropriate.

Section 543 requires the Secretary of Defense to examine and streamline policies for implementing changes to the UCMJ, and ensure that legal guidance on such changes is published as soon as practicable.

Section 544 will modify Rule 104 of the Rules for Courts-Martial to ensure that SVCs do not receive less favorable evaluations or ratings because of zeal with which they represent victim clients. This provision will go into effect no later than 180 days after enactment of the NDAA.

Section 545 orders the President to modify Rule 304(c) of the Military Rules of Evidence to conform to rules governing admissibility of corroboration of confessions and admissions in federal court criminal cases, to the extent he “considers practicable.” This will make it easier to introduce confessions in courts-martial, though the specifics remain to be seen.

Meanwhile, DoD has updated its sexual assault regulations to incorporate provisions of some prior NDAAs — not all of which had made their way into DoD memoranda and policy statements — as well as recommendations from the Comptroller General, defense task forces, the services and, according to DoD, survivors of sexual assault. DoD Directive 6495.01 was re-issued in early 2015, and the more comprehensive and detailed DoD Instruction 6495.02, incorporating change 2, was re-issued effective July 7, 2015. The instruction supersedes a number of memoranda and policy statements on which advocates have relied, incorporating them into a single document. It includes, for example, prohibition of retaliation not only against victims but also against others who report assaults or intervene to prevent the victims. It codifies the expedited transfer policy for victims of sexual assault, clarifies restricted and unrestricted reporting options and exceptions to restricted reports, and emphasizes training and command responsibility.

As policies change and are clarified, DoD and the services are not proving adept at keeping up to date. Particularly in the field, many new provisions are still unknown or ill-understood, leaving it to Sexual Assault Response Coordinators and Sexual Assault Victims Advocates to try to make sure commands understand and implement Sexual Assault Prevention and Response policies. If this writer’s experience is indicative, there remains a great deal of distance between the written policies and practice in the field. Advocates and attorneys, armed with the NDAA and the new instruction, can play an important role in forcing commands to follow their own rules.

Kathleen Gilberd, a legal worker in San Diego, is executive director of MLTF.