December 2019

By Sabrina Merold

Sexual assault has continued to be a serious problem in the armed forces and rates of Service members reporting sexual assault are on the rise. The most recent report from the Department of Defense (DoD) on Sexual Assault in the Military found that in Fiscal Year 2018, over six percent of active duty women experienced a sexual assault in the past year—the highest rate since 2006.[1] Further, in Fiscal Year 2018, only 30 percent of the total 20,500 Service members who experienced a sexual assault in the past year reported their assault. [2] A confidential survey by the DoD found that not wanting more people to be aware of their assault was one of the main motivations for both male and female Service members who chose not to report their sexual assault—a choice often driven by a fear of retaliation. [3] This memo provides an overview of the prevalence of sexual assault in the military and military academies, resources available for Service members who are victims of sexual assault, and resources and investigative processes available for Service members who experience retaliation following the report of a sexual assault.

Reports of Sexual Assault in the Military

In the DoD’s Annual Report on Sexual Assault in the Military, the DoD estimated that in Fiscal Year (FY) 2018[4] there were 20,500 Service members, who “experienced some kind of contact or penetrative sexual assault[5] in 2018,” representing approximately 13,000 women and 7,500 men.[6] This estimate was obtained from the Workplace and Gender Relations Survey of Active Duty Members (WGRA), a survey of roughly 100,000 active-duty men and women in the Army, Navy, Air Force, and Marines.[7] The DoD is required to conduct the WGRA every two years under Section 481 of title 10 of the United States Code.[8] The number of Service members experiencing unwanted sexual contact in 2018 was up from the estimated 14,900 instances in 2016. [9] While the overall number of estimated Service members experiencing sexual assault increased in FY18, “it remained below the 2006 and FY12 estimates of 34,200 and 26,000, respectively.” [10]

Further, the estimated “past-year prevalence” of sexual assault for active duty women ages 17 to 24 increased between the 2016 WGRA and the 2018 WGRA. In 2018, the DoD found that roughly 6.2 percent of active duty women disclosed experiencing a sexual assault in the year prior to being surveyed, which was a statistically significant increase from the 4.3 percent disclosed in 2016. [11] During the same time frame, the estimated prevalence of sexual assault for active duty men remained statistically unchanged at 0.7 percent. [12] Between 2016 and 2018, the number of assaults experienced by men and women increased in the Army, Navy, Marine Corps, and Air Force. [13] The Marine Corps had the highest rates of sexual assault—one in ten surveyed women in the Marine Corps reported being assaulted. [14]

The FY18 WGRA revealed that the Service members at the greatest risk for sexual assault are women who experienced sexual assault prior to joining the military, women ages 17 to 24, unmarried women, and junior enlisted women. [15] The greatest number of incidents of sexual assault involved junior enlisted women—the alleged offender was often in the same rank as the victim or one rank higher.[16] In FY18, an estimated 9.1 percent of junior enlisted women disclosed experiencing sexual assault, which was a statistically significant increase from the 6.6 percent disclosed in FY16. [17]

DoD’s FY18 survey also found that “the vast majority of sexual assaults of Service members occurred between people aged 17 to 24 who work, train, or live in close proximity.” [18] Active duty women noted that offenders were predominantly military men that they “considered to be a friend of acquaintance, acting alone.” [19] Additionally, the location where Service members experience sexual assault has changed since the DoD conducted the first WGRA in 2006. [20] In 2006, 75 percent of women and 74 percent of men disclosed experiencing unwanted sexual contact at a military installation, and 45 percent of women and 68 percent of men disclosed experiencing the unwanted conduct during duty hours. [21] The 2018 WGRA found a shift in these numbers, as 62 percent of women and 57 percent of men disclosed experiencing unwanted contact at a military installation or on a ship and 26 percent of women and 43 percent of men disclosed that the unwanted contact took place during duty hours. [22]

Reports of Sexual Assault at Military Academies

In June 2017, the Under Secretary of Defense for Personnel and Readiness issued a memorandum for the military service academies to develop plans to tackle four main areas: promotion of responsible alcohol choices, reinvigoration of prevention of sexual assault, enhancement of a culture of respect, and improvement in reporting of sexual assault and sexual harassment. [23] The Academies provided the DoD with their plans in October 2017. By the summer of 2018, all three military service academies (the United States Military Academy, United States Naval Academy, and United States Air Force Academy) began implementing plans “they provided to Department to address alcohol consumption, sexual assault prevention, academy culture, and sexual assault and sexual harassment reporting.” [24]

The United States Military Academy’s efforts to reinvigorate prevention of sexual assault included leveraging the Sexual Harassment/Assault Response and Prevention (SHARP) and Education Working Group and spreading key messages and desired outcomes from the SHARP conference.[25] For the United States Naval Academy, its plan addressed revising Sexual Harassment and Assault Prevention and Education (SHAPE) curriculum to equip midshipmen with skills to intervene in risky situations and updating academy trainings for midshipmen and permanent party staff. [26] The United States Airforce Academy’s plan involved employ[ing] a series of [Sexual Assault Prevention and Response] SAPR trainings and educational programs, including Cadet Healthy Personal Skills Training and Healthy Relationships Training, to reinvigorate sexual assault prevention efforts, and develop[ing] a curriculum to promote healthy relationships, incorporate[ing] prevention messaging throughout the agency, and employ[ing] violence prevention integrators. [27]

The DoD’s most recent Annual Report on Sexual Harassment and Violence at the Military Service Academies for Academic Program Year 2017-2018 found that “overall estimated past-year prevalence (occurrence) of unwanted sexual contact increased for cadets and midshipmen compared to rates last measured in 2016.” [28] The Congressionally-mandated report examines policies and programs in place at the DoD’s three academies to tackle sexual assault and sexual harassment, and the report includes self-assessments and an anonymous survey of cadets and midshipmen. In 2018, 15.8 percent of female cadets and midshipmen experienced unwanted sexual contact in the past year, an increase from the 12.6 percent experienced in 2016. [29] For male cadets and midshipmen, 2.4 percent experienced unwanted sexual contact in the past year in 2018, an increase from the 1.7 percent experienced in 2016. [30]

At both the United States Military Academy and the United States Air Force Academy estimates of unwanted sexual contact increased for women. [31] In 2018, estimates of experienced sexual assault only increased for men at the United States Military Academy. [32] All three military service academies received a total of 117 reports of sexual assaults involving cadets and midshipmen in the Academic Program Year 2017-2018, five more than the previous academic year. [33] Of those reports, 69 were Unrestricted and 48 were Restricted. [34] When it comes to efforts to address sexual assault at military service academies, in 2018, 80 percent of cadets and midshipmen reported “believ[ing] Academy Senior Leaders are making honest and reasonable efforts to stop sexual assault and harassment” and 56 percent reported “believ[ing] Peer Leaders are making honest and reasonable efforts to stop sexual assault and sexual harassment.” [35]

Statistics on Sexual Assault Reporting Rates

Service members who experience sexual assault can make an Unrestricted or a Restricted Report of the sexual assault. Restricted Reports are available to military personnel of the Armed Forces and their adult dependents who want to confidentially disclose the sexual assault to “specifically identified individuals without triggering the official investigative process or notification to command.” [36] Individuals who desire to make a Restricted Report can make a report to a Sexual Assault Response Coordinator (SARC), Sexual Assault Prevention and Response (SAPR) Victim Advocate (VA), or a Healthcare Provider or Personnel, who then makes sure that the “victim receives healthcare (medical and mental health), advocacy services (from a SARC or SAPR VA), and legal advice (from a Special Victims’ Counsel) without notifying command or law enforcement officials.” [37]

An Unrestricted Report begins an official law enforcement investigation and notifies the chain of command. The reporting process provides the victim with access to: advocacy services (support, information, referral and accompaniment), medical/counseling services, victims’ legal counsel, law enforcement notification/investigation, command notification/support, military protective order, and expedited transfer. [38] DoD civilians and DoD contractors who are victims of sexual assault can only use the Unrestricted Reporting process. An Unrestricted Report can be made to: a Uniform Victim Advocate, a Civilian SAPR Victim Advocate, a Sexual Assault Response Coordinator, Healthcare Personnel, a Chaplain, Victims’ Legal Counsel, Chain of Command, and Law Enforcement. [39] A victim of sexual assault can choose at any time to convert a Restricted Report to an Unrestricted Report and participate in the military justice process. If a victim makes an Unrestricted Report, the Restricted Report is no longer an option.

In the FY18 WGRA, Military Services received 7,623 reports of sexual assault involving Service members who were victims or subjects of criminal investigations—a 12.6 percent increase from FY17 reports. [40] Of the total number of reported sexual assaults, 6,676 involved Service member victims, with 623 involving sexual assaults that occurred before the individual entered military service. [41] Thus, in FY18 6,053 Service members made a report of sexual assault that had occurred in the previous year, representing “30% of the estimated total 20,500 Service members who experienced a sexual assault in FY18.” [42] The reporting rate in FY18 was similar to the 32 percent reporting rate recorded in FY16 and an increase from the 7 percent reporting rate when the WGRA was first conducted in 2006. [43]

Additionally, in FY18, a larger number of Service members chose the Unrestricted Reporting process—5,805 Unrestricted Reports out of the total 7,623 reports of sexual assault. [44] Military Services received 2,366 Restricted Reports from Service members in FY18. Of those reports, 548 (23 percent) elected to convert to an Unrestricted Report, bringing the number of Unrestricted Reports in FY18 to 5,805 and the number of FY18 Restricted Reports to 1,818. [45]

The Restricted Reporting option remains very important to military women, as “47 percent of all military women who initially filed a Restricted Report of sexual assault in the past year indicated in the 2018 WGRA that they would not have reported their situation at all if making this type of report was not an option.” [46] In the FY16 WGRA, only 23 percent of military women expressed this opinion. [47] Further, if making a Restricted Report were not an option, only 11 percent of military women would have been willing to seek confidential civilian resources. [48] This percentage was a statistically significant decrease from the 58 percent of military women in FY16 who expressed willingness to seek confidential civilian resources if making a Restricted Report were not an option. [49]

In the FY18 WGRA, women and men indicated similar motivations for choosing to report the sexual assault. The “top three-survey indicated responses on why women reported sexual assault were to stop the alleged offender from hurting others (61 percent), to stop the alleged offender from hurting them again (50 percent), and because someone they told encouraged them to report (49 percent).” [50] Thirty-two percent of men were both motived to report because someone encouraged them to report and because they wanted to punish the alleged perpetrator. For men and women who chose not to report a sexual assault, the main motivations were “because they wanted to forget about the event and move on” (73 percent of women and 49 percent of men) and “because they did not want more people to know about their assault” (61 percent of women and 41 percent of men). [51]

Military Resources for Sexual Assault Complaints

Sexual Assault Response Coordinator (SARC)

According to the DoD, a Sexual Assault Response Coordinator (SARC) is the single point of contact at an installation or within a geographic area who oversees sexual assault awareness, prevention, and response training; coordinators medical treatment, including emergency care, for victims of sexual assault; and tracks the services provided to a victim of sexual assault from the initial report through final disposition and resolution. [52]

SARCs must be trained in and understand the confidentiality requirements of Restricted Reporting. SARCs provide assistance to installation commanders to see to it that sexual assault victims are provided with appropriate, responsive care, understand the reporting options available, and are aware of available SAPR services. Additionally, the responsibilities of SARCs include providing 24 hours, 7 day a week “response capability to victims of sexual assault.” [53] SARCs respond “to every Restricted or Unrestricted Report of sexual assault on a military installation and the response shall be in person, unless otherwise requested by the victim.” [54] When the sexual assault victim is contacted by the SARC, the victim can choose whether or not to speak with the SARC—the services of the SARC are optional and can be declined in entirety or in part. DoD Instruction 6495.02 notes that SARCs should provide a response to a Service member’s reported sexual assault that is trauma informed, “gender-responsive, culturally-competent, and recovery-oriented.” [55]

When the sexual assault victim is completing the reporting process, the SARC can assist the victim in filling out the DD Form 2910, the form where the victim chooses to make a Restricted or an Unrestricted Report. The SARC must provide the victim with a hard copy of the form and explain both SAFE confidentiality to the victim and the confidentiality of the SAFE Kit contents.[56] Following the filing of an Unrestricted Report, the SARC should notify the installation commander and the immediate commander of the victim of the Unrestricted Report within 24 hours of the report’s filing. [57] For a Restricted Report of sexual assault, the SARC should provide notice to the installation commander within 24 hours of the report. [58]

SARCs also inform Service members who are victims of sexual assault of the opportunity to speak with legal counsel. When providing victims with information about Special Victim’s Counsel of Victim’s Legal Counsel (SVC or VLC), the SARC should explain to the victim that the relationship between the SVC or VLC and the victim would be the relationship between an attorney and client. In addition to SVCs and VLCs, SARCs maintain liaisons with DoD law enforcement, Military Criminal Investigative Organizations (MCIOs), and civilian authorities. Further, SARCs play an important role in facilitating: the education of command personnel; “briefings on victim advocacy services to Service members, military dependents, DoD civilian employees, DoD contractors, and other command or installation personnel,” yearly SAPR trainings, and “the development and collaboration of SAPR public awareness campaigns for victims of sexual assault,” including publicizing outreach materials and the DoD Safe Helpline. [59]

SARCs have an important responsibility to input the information of a report of sexual assault into the Defense Sexual Assault Incidence Database (DSAID) within 48 hours of the report. [60] In the DSAID account, SARCs should record all the services referred to and requested by the victim from the time of the initial report until the final case disposition or when the victim no longer desires services. [61] If a victim is temporarily or permanently changed stations, the SARC must receive the victims consent to transfer case management documents to make sure the victim receives continuity of care. [62] At a broader level, SARCs are responsible for continuing to conduct assessments of the SAPR program and can offer to victims the ability to participate in surveys of victim feedback on the reporting process. [63]

Sexual Assault Victims Advocate (SAVA or VA)

A Sexual Assault Prevention Response Victims Advocate is defined by the DoD as “[a] person who, as a victim advocate, shall provide non-clinical crisis intervention, referral, and ongoing non-clinical support to adult sexual assault victims.” [64] Support entails providing information on available options and resources to victims of sexual assault, so that victims can make an informed decision about their case. The SAVA also “provides liaison assistance with other organizations and agencies on victim care matters and reports directly to the SARC when performing victim advocacy duties.” [65] SAVAs must be trained in and understand the confidentiality requirements of Restricted Reporting. Military personnel responsible for providing victim advocacy must be informed and immediately respond following the report of a sexual assault. SAVAs also must “assist the victim in navigating those processes required to obtain care and services needed,” but it is not the responsibility of a SAVA to serve as the victim’s mental health provider or investigator. [66]

Special Victims’ Counsel (SVC or VLC)

Under 10 U.S.C § 1044e, “The Secretary concerned shall designate legal counsel (to be known as “Special Victims’ Counsel”) for the purpose of providing legal assistance to an individual…who is the victim of an alleged sex-related offense, regardless of whether the report of that offense is restricted or unrestricted.” [67] Section 1044e applies to victims of alleged sex-related offenses “during a period in which the individual served on active duty, full-time National Guard duty, or inactive-duty training;” or “during any period, regardless of the duty status of the individual, if the circumstances of the alleged sex-related offense have a nexus to the military service of the victim.” [68] An individual who is the victim of an alleged sex-related offense shall be provided the option of receiving assistance from a SVC when the victim reports the offense or when the victim seeks assistance from a SARC, a SAVA, a military criminal investigator, a victim/witness liaison, a trial counsel, or a healthcare provider.

Further, notice of the option of a SVC shall be given to a victim of a sex-related offense “before any military criminal investigator or trial counsel interviews, or requests any statement from, the individual regarding the alleged sex-related offense.” [69] The victim should also be informed that he/she can deny the assistance of a SVC, but that the choice to decline does not prevent the individual from later requesting the assistance of a SVC. [70] Section 1044e authorizes SVCs to provide multiple types of legal assistance including:

  • 1) Legal consultation pertaining to potential criminal liability of the victim “stemming from or in relation to the circumstances surrounding the alleged sex-related offense and the victim’s right to seek military defense services;”
  • 2) Legal consultation pertaining to the Victim Witness Assistance Program;
  • 3) Legal consultation pertaining to “the responsibilities and support provided to the victim by the Sexual Assault Response Coordinator, a unit or installation Sexual Assault Victim Advocate, or domestic above advocate, to include any privileges that may exist regarding communications between those persons and the victim;
  • 4) Legal consultation involving the potential for civil litigation against other parties;
  • 5) Legal consultation regarding the military justice system;
  • 6) “Representing the victim at any proceedings in connection with the reporting, military investigation, and military prosecution of the alleged sex-related offense;”
  • 7) Legal consultation pertaining to eligibility and services available for mental health counseling and other medical services;
  • 8) Legal consultation and assistance in any proceedings of the military justice process where the victim can participate as a witness or other party;
  • 9) Legal consultation and assistance relating to any complaint against the Government, including allegations under review by an Inspector General, any FOIA requests for information from the Government, and any communications with Congress; and
  • 10) Other legal assistance authorized by the Secretary of Defense.[71]

The WGRA examines the satisfaction levels of military men and women who reported experiencing sexual assault. In the FY18 WGRA, approximately half of military women who went through the Unrestricted Reporting process “indicated they were provided thorough information about most SAPR services” and roughly three-quarters of military men and women who experienced sexual assault “and interacted with SAPR personnel during the military justice process were satisfied with the support they received.” [72] Further, 76 percent of Service members reported satisfaction with the support offered by the SAPR Victim Advocate, 74 percent reported satisfaction with the support offered by the VLC, and 72 percent reported satisfaction with the support offered by the SARC. [73]

Department of Defense’s Definition and Examples of Retaliation

According to the DoD Retaliation Prevention and Response Strategy: Regarding Sexual Assault and Harassment Report, “retaliation is an umbrella term encompassing illegal, impermissible, or hostile actions taken by the chain of command or peers/coworkers as a result of making or being suspected of making a protected communication (e.g., a report of sexual assault or a complaint of sexual harassment). [74] Retaliation for reporting a criminal offense can take place in a variety of ways, including reprisal, ostracism, or maltreatment. The DoD notes though that these three ways “do not cover all conduct that could qualify as retaliation,” as these three ways would not “include an action taken by a peer or subordinate against an alleged victim in an effort to dissuade the alleged victim from participating in a prosecution.” [75] In the 2016 Retaliation Prevention and Response Strategy Report, the DoD stated that the categories of reprisal, ostracism, and maltreatment “must be expanded to include all potential retaliatory acts.” [76]

Reprisal can include a range of “unjustified personnel actions, such as interfering with promotion, unreasonably downgrading someone’s evaluation, or unfairly denying an award.” [77] Reprisal is statutorily defined in 10 USC § 1034 to include:

  1. The threat to take any unfavorable action;
  2. (ii) The withholding, or threat to withhold
  3. any favorable action; (iii) The making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade;
  4. (iv) The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member;
  5. (v) The conducting of a retaliatory investigation[78] of a member. [79]

The definition of ostracism varies based on the Military Department. For instance, “in order to violate the punitive regulations of the Departments of the Navy and Air Force, ostracism must be committed with the intent to prevent reporting of a crime or to dissuade someone from participating in the justice process.” [80] Under the Army regulations, the crime of ostracism can be committed without intent to prevent reporting or interfere with someone’s ability to participate in the justice process. [81] Further, the Uniform Code of Military Justice prohibits “acts of cruelty, oppression, and maltreatment against a crime reporter when an individual who can legally give orders to that reporter commits the acts.” [82] Other types of retaliatory acts can be prosecuted under the Uniform Code of Military Justice, including “failure to obey an order or regulation, assault, stalking, or damage/destruction of property.” [83]

Statistics on Retaliation from the Department of Defense

The WGRA evaluates whether Service members who experienced a sexual assault and chose to report the assault perceived retaliatory behavior associated with their report. In the FY18 WGRA, approximately 21 percent of the 4,800 active duty women “who made a report in FY18 experienced circumstances that met legal criteria for the kinds of retaliatory behavior prohibited by military law.” [84] The percentage remained statistically unchanged from estimates in FY16. [85]

Further, the WGRA includes reports of retaliation allegations received through the Case Management Group (CMG) process and allegations of retaliation investigated and/or handled by the Military Services, National Guard Bureau or DoD Inspector General, MCIOs, law enforcement, and/or command-directed inquires. [86] The CMG is a multi-disciplinary group that reviews individual cases of Unrestricted Reports of sexual assault on a monthly basis and “facilitates monthly victim updates and directs system coordination, accountability, and victim access to quality services.”[87] The group is comprised of a: SARC, SAVA, military criminal investigator, DoD law enforcement, healthcare provider and mental health and counseling services, chaplain, command legal restrictive or staff judge advocate, and victim’s commander. [88]

In FY18, the Military Services and the National Guard Bureau received 54 allegations of retaliation through the CMG process. [89] Women made approximately three-quarters of these allegations and more than half of the Service members who made an allegation indicated that a person acting alone sexually assaulted them. [90] For the investigations of alleged retaliation handled by the Military Services, National Guard Bureau or DoD Inspector General, MCIOs, law enforcement, and/or command-directed inquires, the allegations were made by individuals who filed Unrestricted Reports of sexual assault, individuals suspected of making a report of sexual assault, or persons making complaints of sexual harassment. [91] In FY18, the Military Services and National Guard Bureau received 108 retaliation allegations against 147 alleged retaliators. Of the allegation reports, the majority of reports were women and was connected to an Unrestricted Report of sexual assault. [92]

Resources for Victims to Report Retaliation

For Service members who are victims of sexual assault, SARCs and SAVAs are required to inform them of the resources available to report retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request a transfer or a military protective order. [93] If the victim’s allegation is criminal in nature and the victim files an Unrestricted Report, the crime must be immediately reported to a MCIO. [94]

When reporting allegations of retaliation, uniformed victims of sexual assault can seek assistance from:

  • A SARC or SAVA or SVC/VLC.
  • A SARC on a different installation, which can be facilitated by the Safe Helpline.
  • Their immediate commander.
  • A commander outside their chain of command.
  • Service personnel to invoke their Service-specific reporting procedures regarding such allegations in accordance with DoD Retaliation and Response Strategy: Regarding Sexual Assault and Harassment Reports.
  • A general or flag officer review if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of victims within 1 year of the final disposition of their sexual assault case.
  • A general or flag officer review if the victim believes that there has been an impact on their military career because they reported a sexual assault or sought mental health treatment for sexual assault that the victim believes is associated with the sexual assault.
  • An SVC or VLC, trial counsel, and Victim Witness Assistance Program, or a legal assistance attorney to facilitate reporting with a SARC or SAVA.
  • Service personnel to file a complaint of wrongs in accordance with Article 138 of the Uniform Code of Military Justice.
  • Inspector General DoD, invoking whistle-blower protections.
  • Commander or SARC to request an expedited transfer.
  • Commander or SARC to request a safety transfer or a military protective order if the victim is in fear for her or his safety. [95]

Following the DoD Retaliation and Prevention and Response Strategy Implementation Plan, a SARC or a SAVA will speak with a Service member who perceives retaliatory behavior after the reporting of a sexual assault and explain the types of retaliation and investigative entities.[96] The SARC or SAVA should recommend that the Service member consult an SVC/VLC or a legal assistance attorney before choosing to report retaliation. The SARC or SAVA should also inform the Service member that he or she could speak with an IG at any time during the process of reporting retaliation. While Service members who perceive retaliation and want to make a report can choose to inform SAPR personnel, Service members can also go directly to an investigative entity (command, MCIO, Inspector General, DoD Inspector General, or law enforcement) to make a retaliation report. [97]

If the Service member wants more information on reporting, the SVC, VLC, or legal assistance attorney should provide information on reporting options. The SVC, VLC, or legal assistance attorney can also assist Service members with evaluating the options for reporting retaliation.

For Service members who want to make a report of the retaliation, there are a few options available, as the Service member could engage command, engage MCIO, engage Inspector General (IG), engage DoD Inspector General (DoD IG) or file a report through DoD Hotline, or engage law enforcement. [98] Any report made through the DoD Hotline will be sent to the DoD IG. [99]

  1. If the Service member engages command and shares his or her experiences, then command should either refer the report to law enforcement for investigation, if necessary, conduct a Command-Directed Investigation, or resolve the report through appropriate means.
  2. If the Service member engages MCIO, then the MCIO investigates the report.
  3. If the Service member engages the IG and the retaliation report is from a sexual assault victim, DoD IG shall be informed.
    1. The DoD IG will then review the retaliation report from the sexual assault victim and address the report.
  4. If the Service member who is a sexual assault victim engages law enforcement and reports retaliation, the law enforcement agency will hand off the report to a MCIO. [100]

The investigative entity has a week following the report of the retaliation and the opening of an investigation to notify the senior SARC and share the information of: “the reporter’s name, the reporter’s ID number and type, the type of reporter (sexual assault victim, witness, bystander, or first responder), the investigative number of the retaliation report, the date of the associated sexual assault report, the name of the victim, and the type of investigative entity.” [101] The senior SARC must then “document the retaliation report in the retaliation data call or open a case in the retaliation module.” [102]

Inspector General (IG) Complaints and Whistleblower Protection

For Service members who have experienced retaliation following the report of a sexual assault in the form of reprisals, there is an established process in place for the IG to handle reprisal complaints. Statutory restrictions on retaliatory actions for protected Service member communications, also referred to as whistleblower protection, were enacted in the 1988 Military Whistleblower Protection Act and codified in 10 U.S.C. § 1034. [103] Under Section 1034, an IG who receives an allegation of retaliation in the form of reprisal “shall expeditiously determine…whether there is sufficient evidence to warrant an investigation of the allegation.” [104] If an allegation is made to an IG within a military department, the IG must timely notify the DoD IG of the allegation. [105] If the IG determines that an investigation into the allegation is warranted, the IG “shall expeditiously investigate the allegation.” [106]

In the circumstances where the IG comes to a “preliminary determination in an investigation…that, more likely than not, a [prohibited] personnel action has occurred and the personnel action will result in immediate hardship to the member alleging the personnel action,” the IG must timely notify the Secretary of the military department at issue or the Secretary of the Homeland Security of the hardship “and such Secretary shall take such action as such Secretary considers appropriate.” [107] Within thirty-days following the IG’s completion of an investigation, the IG must “submit a report on the results of the investigation to the Secretary of Defense and the Secretary of the military department concerned” and a copy shall be sent to the member of the armed forces who made the allegation. [108] The outcome of the investigation must be “determined by, or approved by, the IG of the Department of Defense.” [109]

According to the DoD, retaliation in the form of ostracism or maltreatment can also be “investigated by either IG or through commander-directed investigation, depending on the Service and the nature of the allegation.” [110] An IG is authorized to investigate retaliation in the form of ostracism and maltreatment if the IG “determines it is IG appropriate or if those complaints are made along with a reprisal complaint or made against a senior official.” [111]

Under the DoD Office of Inspector General, the Directorate for Whistleblower Reprisal Investigations (WRI) is tasked with “objectively and thoroughly investigating whistleblower reprisal complaints filed by members of the armed forces, appropriated and nonappropriated fund employees of the DoD, and employees of DoD contractors and subcontractors.” [112] In March 2018, as a result of the marked increase in the number of reprisal complaints related to sexual assault, the WRI expanded its staff, adding a “second specialized team comprised of six investigators, a senior investigator, and a supervisory investigator.”[113] The specialized teams are in charge of investigating whistleblower reprisal complaints where “complainants alleged they were reporting or preparing to report a sexual assault, or that they were perceived as reporting or preparing to report the crime,” and the teams are also responsible for investigating complaints from individuals who have provided assistance to someone after the person reported a sexual assault. [114] According to the DoD, in FY18, WRI’s specialized teams focused on sexual assault related reprisals received sexual assault trauma training from experts. [115]

Article 138 and Article 1150 Complaints

Article 138 Complaints

For Service members who are victims of alleged retaliation following the reporting of a sexual assault, Article 138 provides a statutory mechanism for Service members to obtain an investigation of allegations of wrongs committed by a Service member’s Commanding Officer. Article 138 of the Uniform Code of Military Justice provides every member of the Armed Forces “who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, [to] complain to any superior commissioned officer.” [116] Matters appropriate to address under Article 138 include discretionary acts or omissions by a commander that adversely affects the member personally and are: in violation of law or regulation; beyond the legitimate authority of that commander; Arbitrary, capricious, or an abuse of discretion; or clearly unfair, e.g., selective application of administrative standards/actions. [117]

Before a Service member can submit an Article 138 complaint, the Service member must first submit a written request for redress, stating the nature of the alleged wrong and the remedial action desired, to the Commanding Officer whom the Service member believes has committed the wrong. [118]

The Commanding Officer must then respond in a timely fashion—typically 15 days from the receipt of the written request. [119] The Commanding Officer can take remedial action or refuse the request. If the written request for redress of the wrong is refused, the next step is for the Service member to file a formal Article 138 complaint. [120] A formal Article 138 complaint must be submitted in writing and: “(1) State ‘I am officially filing an Article 138 Complaint against [the person to whom you write the initial letter] because of [restate the grievance],” (2) State the officer’s response to the initial letter or lack of response, (3) State what actions must be taken to redress the grievance.” [121] The Article 138 complaint must be submitted along with the complaint for redress to the commanding officer and any supporting evidence to the Service members’ immediate superior commissioned officer. [122]

For an Article 138 complaint to be considered timely, the complainant has to submit the complaint within 90 days from the date he/she discovered the wrong. [123] The time waiting for the Commanding Officer to respond to the written request for redress does not count for the 90-day time limit. [124] The officer who receives the Article 138 complaint must forward it within 10 days of receipt to the officer exercising General Court Martial Authority, who is typically the Service member’s Commanding General. [125] The Commanding General then forwards the complaint and any supporting evidence to Headquarters, Department of the Army (HQDA) in addition to the Commanding General’s examination of the complaint and the steps taken to redress the alleged wrongdoing. [126]

At HQDA, the complaint is reviewed by the Judge Advocate General on behalf of the Secretary of the Army, who will inform the Service member of the final disposition of the Article 138 complaint. [127] At any point before final action is taken on the complaint, a Service member may withdraw an Article 138 complaint. [128] The right to submit an Article 138 complaint is protected by the Uniform Code of Military Justice, thus the Service member’s chain of command cannot take retaliatory action for the filing of an Article 138 complaint. [129] During the Article 138 complaint process, Service members have the right to consult with a military legal assistance attorney or a civilian attorney for advice and assistance in drafting the request for redress and formal Article 138 complaint. [130]

Article 1150 Complaints

Article 1150 of the United States Naval Regulations outlines a similar complaint process for Navy and Marine Personnel to supplement Article 138. Article 1150 provides any Marine who believes that he/she has been “wronged by an act, omission, decision, or order of a person superior in rank, or command,” with the right to report the wrongdoing to the proper authority for redress. [131] Article 1150 also allows military members to seek redress from superiors not in the military member’s chain of command. However, Article 1150 complaints “are not to be used for complaints against a Marine’s Commanding Officer, which are the proper subject of an Article 138 complaint.” [132]

Request for Expeditious Transfer of Sexual Assault Survivor or Assaulter

If a Service member who is a victim of sexual assault experiences a threat to his or her life or safety, the threat must be immediately reported to command and DoD law enforcement authorities.[133] Under those circumstances, the victim’s request to transfer is not handled through an expedited transfer process, but is handled through “a fast safety move following applicable DoD and Service-specific procedures.” [134] According to the DoD, “[t]he intent behind the Expedited Transfer policy…is to address situations where a victim feels safe, but uncomfortable,” such as a situation “where a victim may be experiencing ostracism and retaliation.” [135] An Expedited Transfer is intended to move the victim of the sexual assault to a new location “where no one knows of the sexual assault.” [136]

Expedited transfer requests are only available to Service members who file an Unrestricted Report of sexual assault. If a Service member files a Restricted Report of a sexual assault, the Service member must change his or her report to an Unrestricted Report in order to be eligible for an expedited transfer. At the time a Service member makes an Unrestricted Report of a sexual assault, the Service member shall be informed by the SARC, SAPR VA, or the Service member’s commanding officer “of the option to request a temporary or permanent Expedited Transfer from their assigned command or installation, or to a different location within their assigned command or installation.” [137] If the Service member chooses to submit a transfer request, the request must be submitted to their Commanding Officer (CO). [138] The CO will then make a credible report determination after examining “the advice of the supporting judge advocate, or other legal advisor concerned, and the available evidence based on an MCIO’s investigation’s information,” if that information is available.” [139] If the CO determines that there was not a credible report, the CO must document the basis for that determination.

When making the credible report determination, the CO shall consider: “[t]he Service member’s reasons for the request [and] [p]otential transfer of the alleged offender instead of the Service member requesting the transfer.” [140] If the Service member’s transfer request is granted, the transfer order could include the Service member and their dependents or military spouse. Transfers to a different installation should happen within 30 calendar days from the date of the approval of the transfer. [141] For transfers to a new duty location that do not involve a change of station, those transfers should occur within 1 week of the approval of the transfer. [142] Alternatively, if the Service member requests a permanent change of station, a permanent change of assignment, or a unit transfer, the CO is required to approve or disapprove the request within 72 hours of receiving the request. [143]

Following the approval of an expedited transfer, the losing commander will not notify the gaining commander of the sexual assault unless there is an “[a]ctive criminal investigation,” an “[a]ctive legal proceeding,” “[o]ngoing victim healthcare (medical or mental health) needs that are directly related to the sexual assault;” “[o]ngoing monthly CMG oversight involving the victim;” or “[a]ctive SAPR victim support services.” [144] Case documents from the SARC or SAPR VA are not to be transferred to the gaining SARC unless the victim consents. [145] In the transfer process, the gaining commander must follow procedures to ensure strict confidentiality.[146]

In terms of transferring a Service member who has been alleged to have committed a sexual assault, Commanders are authorized to make timely decisions on whether such Service members “should be temporarily reassigned or removed from a position of authority or from an assignment.” [147] According to the DoD, if a Commander chooses to temporarily reassign or remove an accused Service member, the “reassignment or removal must be taken not as a punitive measure, but solely for the purpose of maintaining good order and discipline within the member’s unit.” [148] A Commander can make the determination for temporary reassignment or removal at any point after receipt of an Unrestricted Report that identifies that Service member as an alleged assaulter. [149]

Congressional Inquiries into Retaliation for Reporting

Article I, Section 8 of the United States Constitution grants Congress with the power to raise and support armies; provide and maintain a navy and make rules for the governance of those forces.[150] Through this authority, Congress has determined that sexual assault is a criminal act under the Uniform Code of Military Justice and thus “has an interest in overseeing the implementation and enforcement of these laws in order to provide for the health, welfare, and good order of the Armed Forces.” [151] In the past two decades, Congressional efforts to tackle military sexual assault have expanded. There are four main categories of Congressional oversight and action on military sexual assault: “(1) Department of Defense management and accountability, (2) prevention, (3) victim protection and support, and (4) military justice and investigations.” [152]

Protecting victims from retaliation for reporting sexual assault falls under the category of Victim Protection and Support. On the issue of retaliation, Congress has taken action to: clarify and expand the definitions of retaliation, improve whistleblower protections for sexual assault victims and bystanders/witnesses, and improve oversight of the investigation and reporting process of alleged retaliatory actions. [153] The FY14 National Defense Authorization Act (NDAA) required the DoD to impose regulations prohibiting retaliation against an alleged victim of sexual assault. [154] The FY14 NDAA also improved protections for military whistleblowers, adding the requirement that IG retaliation investigations “include those ‘making a protected communication regarding violations of law or regulation that prohibit rape, sexual assault, or other sexual misconduct.’” [155] Congress continued to expand whistleblower protections in the FY17 NDAA, addressing concerns raised in a 2015 Government Accountability Office (GAO) report. [156] The 2015 report reviewed DoD IG’s handling of whistleblower complaints, finding that “DoD IG did not have a process for documenting whether investigations were independent and were conducted by someone outside the military service chain of command” and that there were “substantial delays in the average length of DoD IG and service IG whistleblower reprisal investigations.” [157] The FY17 NDAA expanded prohibited personnel actions against whistleblowers to include:

  • (i) The threat to take any unfavorable action.
  • (ii) The withholding, or threat to withhold any favorable action.
  • (iii) The making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade.
  • (iv) The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member.
  • (v) The conducting of a retaliatory investigation of a member. [158]

Sabrina Merold is a Legal Fellow at the Center for Reproductive Rights. She graduated from the University of Pennsylvania Law School in 2020, where she focused on the intersections of economic and reproductive justice. In law school, she was actively involved in the public interest community and served as President of If/When/How: Law Students for Reproductive Justice, an Executive Editor for the Journal of Law & Social Change, and a pro bono advocate with the Pardon Project and the Employment Advocacy Project.

  1. Department of Defense, Department of Defense Annual Report on Sexual Assault in the Military Fiscal Year 2018 (2019) [hereinafter FY18 DoD Report on Sexual Assault].

  2. Id.

  3. Id.

  4. The FY 2018 survey covered allegations made from October 1, 2017 through September 30, 2018.

  5. See Department of Defense Instruction (DoDI 6495.02), Sexual Assault Prevention and Response Program Procedures (2017) [hereinafter SAPR Program Procedures]. “Sexual assault against adults…includes rape and sexual assault in violation of Article 120 of the UCMJ…and forcible sodomy in violation of Article 125 of the UCMJ.”

  6. FY18 DoD Report on Sexual Assault at 3.

  7. Id. at

  8. See 10 U.S.C. § 481.

  9. FY18 DoD Report on Sexual Assault at 3.

  10. Id. at 10.

  11. Id. at 3.

  12. Id.

  13. Id. at 9.

  14. Id.

  15. Id. at 10.

  16. Id. at 4.

  17. Id. at 10.

  18. Id. at 4.

  19. Id.

  20. Id. at 11.

  21. Id.

  22. Id.

  23. Department of Defense, Annual Report on Sexual Harassment and Violence at the Military Service Academies Academic Program Year 2017-2018 (2019) [hereinafter Military Service Academies Report].

  24. Id. at 3.

  25. Id. at 15.

  26. Id. at 16.

  27. Id. at 17.

  28. Id. at 4.

  29. Id.

  30. Id.

  31. Id.

  32. Id.

  33. Id.

  34. Id.

  35. Id. at 6.

  36. Restricted Reporting, United States Department of Defense Sexual Assault Prevention and Response,

  37. Id.

  38. Unrestricted Reporting, United States Department of Defense Sexual Assault Prevention and Response,

  39. Id.

  40. FY18 DoD Report on Sexual Assault at 15.

  41. Id.

  42. Id.

  43. Id.

  44. Id.

  45. Id.

  46. Id.

  47. Id.

  48. Id.

  49. Id.

  50. Id. at 16.

  51. Id.

  52. See 32 CFR § 103.3.

  53. SAPR Program Procedures at 61.

  54. Id.

  55. Id. at 62.

  56. Id. at 63. A SAFE Kit is the forensic sexual assault evidence collection and preserving, which must be completed in accordance to 32 CFR § 105.12.

  57. Id.

  58. Id.

  59. Id. at 64.

  60. Id. at 65.

  61. Id.

  62. Id.

  63. Id. 63; 66.

  64. See 32 CFR § 103.3.

  65. Id.

  66. SAPR Program Procedures at 66.

  67. See 10 U.S.C. § 1044(e).

  68. Id.

  69. Id.

  70. Id.

  71. Id.

  72. FY18 DoD Report on Sexual Assault at 16.

  73. Id.

  74. Department of Defense, DoD Retaliation Prevention and Response Strategy: Regarding Sexual Assault and Harassment Reports 27 (Apr. 2016) [hereinafter DoD Retaliation Prevention 2016].

  75. Id. at 5.

  76. Id. at 27.

  77. Id. at 5.

  78. “Retaliatory investigation” is defined as “an investigation requested, directed, initiated, or conducted for the primary purpose of punishing, harassing, or ostracizing a member of the armed forces for making a protected communication.” See 10 U.S.C. § 1034.

  79. 10 U.S.C. § 1034.

  80. DoD Retaliation Prevention 2016 at 5.

  81. Id.

  82. See 10 U.S.C. § 893.

  83. DoD Retaliation Prevention 2016 at 5.

  84. FY18 DoD Report on Sexual Assault at 21.

  85. Id.

  86. Id.

  87. See 32 CFR § 105.13.

  88. Id.

  89. FY18 DoD Report on Sexual Assault at 21.

  90. Id.

  91. Id.

  92. Id.

  93. SAPR Program Procedures at 42.

  94. Id.

  95. Id. at 42-43.

  96. Department of Defense, DoD Retaliation Prevention and Response Strategy Implementation Plan App. C (Jan. 2017) [hereinafter DoD Retaliation Prevention 2017].

  97. Id.

  98. Id.

  99. Id.

  100. Id.

  101. Id.

  102. Id.

  103. See 10 U.S.C. § 1034.

  104. Id.

  105. Id.

  106. Id.

  107. Id.

  108. Id.

  109. Id.

  110. DoD Retaliation Prevention 2016 at 5.

  111. Id.

  112. Whistleblower Reprisal Investigations, Department of Defense Inspector General,

  113. FY18 DoD Report on Sexual Assault at 22.

  114. Id.

  115. Id.

  116. 10 U.S.C. § 938, Art. 138.

  117. Article 138 Complaints, GI Rights Hotline,

  118. Id.

  119. See Article 138 Complaints, United States Army Garrison Presidio of Monterey (2015),

  120. GI Rights Hotline. supra note 118.

  121. Id.

  122. Id.

  123. Id.

  124. Id.

  125. U.S. Army Garrison Presidio of Monterey, supra note 120.

  126. Id.

  127. Id.

  128. Id.

  129. Id.

  130. Id.

  131. Grievance Procedures: Article 138 Complaints, Article 1150 Complaints, Marine Corps Air Station New River, https://www.newriver.marinesmil/Portals/17/Documents/Grievance%20Procedures.pdf.

  132. Id.

  133. SAPR Program Procedures at 51.

  134. Id.

  135. Id.

  136. Id.

  137. Id.

  138. Id.

  139. Id. at 52.

  140. Id.

  141. Id.

  142. Id.

  143. Id.

  144. Id. at 54.

  145. Id. at 55.

  146. Id.

  147. Id. at 53.

  148. Id.

  149. Id.

  150. U.S. Const. art. 1, § 8

  151. Kristy N. Kamarck & Barbara Salazar Torreon, Military Sexual Assault: A Framework for Congressional Oversight, Congressional Research Service (2017).

  152. Id.

  153. Id. at 41.

  154. National Defense Authorization Act for Fiscal Year 2014, H.R. 3304, 113th Cong. (2013).

  155. Id.

  156. Kamarck at 43.

  157. Id. at 43-44.

  158. National Defense Authorization Act for Fiscal Year 2017, S. 2943, 114th Cong. (2016).