NEW DoD POLICY ON SEXUAL ASSAULT

On January 3, the Department of Defense announced a new policy on sexual assault prevention and response. It took the form of a series of very brief “directive-type memoranda” for the Secretaries of the military services from the Undersecretary of Defense for Personnel and Readiness. Actually promulgated in November and December, and effective immediately, the memos are part of a policy in formation mandated by the new Defense Authorization Act. They include:

∑ Collateral Misconduct in Sexual Assault Cases
∑ Increased Victim Support and a Better Accounting of Sexual Assault Cases
∑ Review of Administrative Separation Actions Involving Victims of Sexual Assault
∑ Data Call for CY04 Sexual Assaults
∑ Department of Defense Definition of Sexual Assault
∑ Training Standards for DoD Personnel on Sexual Assault Prevention and Response
∑ Training Standards for Pre-Deployment Information on Sexual Assault and Response Training
∑ Commander Checklist for Responding to Allegations of Sexual Assault
∑ Training Standards for Sexual Assault Response Training
∑ Response Capability for Sexual Assault
∑ Collaboration with Civilian Authorities for Sexual Assault Victim Support

The memos can be found on line at www.dtic.mil/whs/directives/corres/dir3.html. The Commander’s Checklist is probably the best reading for those who want a general sense of the policy. Overall, the policy emphasizes that sexual assault harms military readiness, that education about sexual assault policy needs to be increased and repeated, and that improvements in response to sexual assaults are necessary to make victims more willing to report assaults. Unfortunately, analysis of the issues is shallow, and the plans for addressing them are limited.

THE CONTEXT

The new policy on sexual assault grew out of media reports and public outrage about sexual assaults against women in the military in Iraq and Afghanistan, and on-going sexual assaults and cover-ups at the Air Force Academy in Colorado. As a result of these, Congress demanded that the military review the problem, and the Defense Authorization Act of 2005 required that a new policy be put into effect by January 1.

This is only the latest round of scandals about sexual assault and sexual harassment in the military, and of outside pressure to reform. Problems with military policy have been reported repeatedly: the Tailhook Convention scandal, the Army’s Aberdeen Proving Ground scandal, reports of rape during the first Gulf war, repeated scandals at the Air Force Academy, etc. The problem has been exacerbated by the high incidence of further sexual harassment and retaliation (often including career-ending administrative action) against those who report assaults or harassment. A series of military and outside studies have led to several policy additions and revisions, accompanied by DoD announcements that the new policies would solve the problems.

WHAT THE NEW POLICY IS NOT

Despite the promises of DoD’s news releases and interviews, the new policy is quite limited, still very general, and not yet complete. It is not:

∑ A policy on sexual harassment. It covers only sexual assault and other sexual offenses.

∑ About justice for victims. The focus is on prevention and support for victims, with only occasional reference to victims’ rights.

∑ Complete. The policy was published piecemeal to meet Congress’s deadline. Important components, particularly provisions for confidentiality, have not yet been published.

∑ Strong. It includes some improvements over the old policy, but these do not touch the most basic issues. Education plans do not include examination of the ways in which military culture and training encourage sexism and sexual violence. Penalties for assaulters are not increased, and protection of victims against further abuse and retaliation are quite limited. Large amounts of command discretion in using these limited measures reduce the policy’s effectiveness.

∑ Detailed. These are only general descriptions of policies, and much remains to be worked out in further DoD regulations, and in service regulations due to be promulgated by February 28.

MAJOR PROVISIONS OF THE POLICY

∑ Confidentiality. There is not yet a specific policy memo on this issue. DoD statements emphasize that victims will be allowed to make confidential statements. The memos available suggest that victims will be able to make “restricted” statements which remain confidential but may not be used for disciplinary action against assaulters. The policy requires that information about the fact of and details of the assault be shared only on a need-to-know basis. Gossip is discouraged. Questioning and investigation by personnel outside the military’s official investigative agencies (NCIS, CID, OSI, DIS) is discouraged. The commander’s checklist memo states that commanding officers should “[t]ake action to safeguard the victim from any formal or informal investigative interviews or inquiries except those conducted by the military criminal investigative organization.” This last may be an important change.

∑ Training and education. While few details are provided about the content of training, the policy does emphasize periodic, on-going training. It requires separate training prior to deployment, to include, among other things, cultural or similar issues of host countries and allied forces that might affect assaults, and resources available to victims in deployed areas.

∑ Rapid response. The new policy requires a rapid and more coordinated response to all reports of sexual assault. Response is to be available 24 hours a day in all locations. Response includes not just medical personnel and military investigative agents, but also victim support personnel if desired, a chaplain if desired, a military attorney (whose role is not defined, but who does not seem assigned to provide assistance to the victim), other security or law enforcement personnel, etc.

∑ Protection of victims. Commanders are to consider use of “no contact” orders to keep the assaulter away from the victim, and the need for temporary reassignment of the victim or the assaulter. (While the victim’s desires are to be considered, and the commander’s discretion is not unlimited, there is no right to a protective order or transfer.)
∑ Response is to be coordinated and followed by a response officer of appropriate rank. Cases and overall readiness are to be evaluated periodically. Victims will be given monthly reports on investigation and action in their cases.

∑ Limits, of sorts, on legal actions against victims. One policy memo discusses “collateral misconduct” by victims, such as drug use or fraternization associated with the incident. (Fraternization usually involves undue friendliness between individuals of different ranks.) Commanders are given discretion to defer disciplinary action against victims until investigation and resolution of the sexual assault case are completed, but there is no suggestion that disciplinary action should sometimes be waived. This memo makes a point of saying that the misconduct “may be viewed as a contributing factor to the sexual assault.” Another memo requires review of administrative discharge of victims, but does not place limits on discharges or create any right to discharge. Instead, it notes that “[c]ircumstances associated with a reported sexual assault incident may ultimately result in a determination that the administrative separation of the victim is in the best interests of either the Armed Forces or the victim, or both.”

More detailed analysis of the policy will be available from the Military Law Task Force after publication of the new service regulations.

February 7, 2005
Kathleen Gilberd