SAPRO’s instructions for someone who has been, or thinks they have been, sexually assaulted are as follows:
- Go to a safe location away from the perpetrator.
- Preserve all evidence of the assault. Do not bathe, wash your hands or brush your teeth. If you are still where the crime occurred, do not clean, or straighten up, or remove anything from the crime scene.
- Contact a Sexual Assault Response Coordinator (SARC) or Sexual Assault Prevention & Response Victim Advocate (SAPR VA). Contact DoD Safe Helpline for live, one-on-one support and information.
- Seek medical care as soon as possible. Even if you do not have any visible physical injuries, you may be at risk of becoming pregnant or acquiring a sexually transmitted disease. Ask the healthcare personnel to conduct a sexual assault forensic examination to preserve forensic evidence. If you suspect you have been drugged, request that a urine sample be collected.
- Make a decision about reporting. Military members usually have an option about how to report the crime.
- Unrestricted Reports allow the victim to participate in the military criminal justice process.
- Restricted Reports are kept confidential, and command and law enforcement are not notified. However, when the victim reports the crime to someone in the chain of command, a Restricted Report is no longer an option.
- Write down, tape, or record by any other means all the details you can recall about the assault and your assailant (SAPRO, n.d.-2).
Generally, an active duty service member (and their adult dependents) has two reporting options: Restricted Reporting and Unrestricted Reporting, each of which has pros and cons and slightly different procedures.
Restricted reporting is for those “who wish to confidentially disclose the crime to specifically identified individuals without triggering the official investigative process or notification to command.” A restricted report is initiated in one of three ways:
- Sexual Assault Response Coordinator (SARC)
- SAPR Victim Advocate (VA)
- Healthcare provider or personnel
Each of these individuals can then see to it that the victim receives medical and mental health services, advocacy services (from a SARC or SAPR VA), and legal advice (from a Special Victim’s Counsel). The installation commander is advised that “an assault” has happened but is not given any details that would allow an easy identification of the victim.
SAPRO offers the following as pros and cons of restricted reporting:
- It is crucial to your recovery that you receive healthcare (medical and mental health) and victim advocacy as soon as possible after you are assaulted.
- Provides personal space and time to consider your options and to begin the healing process.
- Empowers you to seek relevant information and support to make more informed decisions about participating in the criminal investigation. Allows you time to get legal advice from a Special Victims’ Counsel.
- You control the release and management of your personal information.
- You decide whether and when to move forward with initiating an investigation.
- Your assailant cannot be held accountable and may be capable of assaulting other victims.
- You cannot receive a military protective order.
- You cannot request an Expedited Transfer to allow you to move to a different unit or base.
- You will continue to have contact with your assailant, if he or she is in your organization or billeted with you.
- Evidence from the crime scene where the assault occurred will be lost, and the official investigation, should you switch to an Unrestricted Report, will likely encounter significant obstacles.
- You should not discuss the assault with anyone, to include your friends, because they may be mandatory reporters. The only exceptions would be chaplains, healthcare personnel, your assigned SAPR VA or SARC, and Special Victims’ Counsel.
This option is recommended for victims of sexual assault who desire an official investigation and command notification in addition to healthcare, victim advocacy and legal services. Unrestricted Reporting follows one of the current reporting channels:
- Law Enforcement/MCIO (initiates an investigation and starts a “report of investigation”)
- Commander (immediately contacts the MCIO to start a “report of investigation”)
- Sexual Assault Response Coordinator (SARC) (fills out DD Form 2910 and victim elects a reporting option)
- SAPR Victim Advocate (SAPR VA) (fills out “DD Form 2910)
- Healthcare personnel (immediately contact the SARC to fill out DD Form 2910)
Upon notification of a reported sexual assault, the SARC will immediately assign a SAPR VA and inform the victim of their right to speak to a Special Victims’ Counsel/Victims’ Legal Counsel (SVC / VLC). At the victim’s discretion or request, the healthcare personnel shall conduct a sexual assault forensic examination (SAFE), which may include the collection of evidence. Details regarding the incident will be limited to only those personnel who have a legitimate need to know (SAPRO, n.d.-4, n.d.-5).
- Victims feel a sense of closure or healing which can aid recovery.
- Ability for Military to hold the offender appropriately accountable.
- Ensure the safety of the victim and of others, who may be victimized by the same suspect.
- Ability to request a Military Protective Order.
- Ability to request an Expedited Transfer to move to a different unit or base (SAPRO, n.d.-4; Lawhorne Scott, 2014).
Very detailed information about these processes, the pros and cons, and sample timelines are available online at www.sapr.mil/index.php under “Victim Assistance” (SAPRO, n.d.-4; Lawhorne Scott, 2014).
The nature of the investigative process can be stressful for victims of sexual assault even with the best efforts of law enforcement, staff judge advocates, and other personnel entrusted with holding offenders appropriately accountable. All service members who are victims of sexual assault are eligible to have a Special Victims’ Counsel, who is their own attorney and can help them understand the process and safeguard their victims’ rights.
Investigators must carefully collect evidence, and the process from investigation to courts martial or some other form of punishment may take many months. Investigators often ask very precise and probing questions because generally there are no eyewitnesses to provide crucial details. A victim may not feel ready to answer questions right after being assaulted, but investigators need to perform interviews while memories are fresh. Patience is critical. A victim should be kept well informed of any investigative actions taken in response to the reported sexual assault.
Commanders should ensure that, at a minimum, a victim receives a monthly update regarding the current status of any ongoing investigative, prosecution, or command proceedings regarding the sexual assault. Monthly updates are required until the final disposition of the reported assault. Final disposition means the conclusion of any judicial, non-judicial, and administrative actions (including separation actions and no action).
The SVC/VLC, SAPR VA, and Victim/Witness Assistance Program (VWAP) personnel are to assist victims through the process and provide support (SAPRO, n.d.-4, n.d.-5; Lawhorne Scott, 2014).
Prosecuting Sexual Assault Cases
In order to navigate a legal process that even the DoD admits “can often be daunting and confusing,” the department created a legal support function for sexual assault victims to provide legal advice and guidance and to maintain a victim’s confidentiality. This is a counter to the fact that most JAG (Judge Advocate General) officers (military lawyers) work for commanders and must keep them informed of all incidents in their command. A victim of sexual assault can access the special legal support function regardless of the type of report they filed.
Professionals in the legal support function are known as Special Victim’s Counsel (SVC) in the Army, Air Force, National Guard, and Coast Guard, while the Navy and Marine Corps refer to them as Victims’ Legal Counsel (VLC). Regardless of name, they are lawyers with military and civilian trial experience, and they understand and can guide victims through the legal process (DoD, 2017; SAPRO, n.d.-5). Each branch of the service has detailed procedures, forms, etc. available online (sapr.mil/index.php/svc-vlc).
The DoD observes a Victims’ Bill of Rights much like the Federal Crime Victims’ Bill of Rights and law enforcement and legal personnel are required to observe its contents. The entire process of investigation, prosecution, and confinement is documented in writing and detailed forms are available outlining each step (sapr.mil/indes.php/victims-bill-of-rights) (SAPRO, n.d.-6).
Unfortunately, all the best planning and organizing may not result in the most desirable outcomes. A May 2016 Military Times article pointed out that, according to its own report, the military in 2015 received 6,000 reports of sexual assaults but only about 250 resulted in a court-martial and conviction on a related crime. Many reports resulted in no punishment of any kind, for a variety of legal reasons. The director of SAPRO observed that the services have not provided enough staff and resources to investigate reports in a timely manner, although that is changing (Tilghman, 2016; see SAPRO, 2016 for the report itself).
The total number of reports in 2015 was similar to that for 2014. As in civilian society, “it’s widely believed sexual assaults. . . are vastly under-reported.” Low conviction rates are blamed in part on the nature of the criminal justice system and the rights of the accused. A breakdown of the results of the 6,083 reports for 2015 is illuminating.
Approximately 1,500 were Restricted Reports for which the victim refused to participate in any criminal investigation. Also, no cases could be made where the attackers’ identity was unknown, the attacker had separated from the military, or the attacker was a civilian. The remaining 2,783 cases sent to military commanders for action fell out as follows:
- 770 – deemed not enough evidence to pursue
- 576 – misconduct unrelated to sex assault substantiated
- 1,437 – misconduct related to sex assault substantiated
- 511 – resolved without court-martial (nonjudicial punishment, administrative discharge, or other action)
- 926 – court-martial proceedings initiated
- 159 – closed when perpetrator resigned from military
- 111 – closed after pretrial dismissal
- 543 – went to court-martial
- 130 – not guilty
- 413 – convicted
- 161 – of charges unrelated to sex assault
- 254 – of sexual assault–related offense
- 113 – still pending at end of 2015 (Tilghman, 2016).
In an article analyzing the statistics from the previous year, the author noted a very similar breakdown of cases (Tilghman, 2015). These kinds of results occur in civilian society as well, where, out of every 1000 rapes, 994 perpetrators will walk free (RAINN, 2016). This is very discouraging to victims and provides no impetus to endure the grueling process of investigation and prosecution, which has itself been described as re-victimization (Zaleski, 2015).
As one of many pieces of proposed legislation intended to assist military sexual assault victims, Senator Kirsten Gillibrand (D-NY) worked for three years on legislation that “would shift sexual-assault prosecutions from the chain of command to military lawyers, in part to remove victims’ fears of retaliation for reporting attacks,” but she has been so far unsuccessful. Strong opposition from the military and disagreement and bureaucratic issues on the Senate Armed Services Committee have both played a role in this (Brune, 2016). Military opposition remains strong but not always accurate. In 2016 the Pentagon was found to have misled Congress with charges that even fewer prosecutions would happen if civilian law enforcement officers were involved (Lardner, 2016).
Barriers to Reporting
Barriers to reporting can involve concerns about the immediate situation or the future or a combination of both. A primary barrier to reporting acts of sexual violence is the fear of retaliation or retribution—by the perpetrator or by other members of the unit. Retaliatory actions can endanger the reporter’s physical safety, mental health, or current or future employment situation.
At a posting or deployment location where facilities are limited or nonexistent, another level of difficulty may be introduced. There is usually no crisis clinic, often no female officer to request (if desired), and law enforcement officers may have no specialized training in sexual assault. Concerns about being believed or perhaps not wanting to believe it themselves add to fears of what is known to be a notoriously grueling and unpleasant investigation and prosecution process. And, in the end, there is a very real possibility that the perpetrator will get off scot free, in which case retaliation and retribution could again be concerns (Zaleski, 2015; Tilghman, 2016, 2015; Lawhorne Scott, 2014).
The benefits and limitations to reporting as framed by SAPRO assume a system working perfectly with all players focused on following the rules within an environment guided by a zero tolerance for sexual violence. Both academic research and anecdotal reporting suggest this is often not reality.
It is suggestive that SAPRO’s website lists benefits and limitations for Restricted Reporting but only benefits for Unrestricted Reporting. While there is nothing incorrect about what is in the lists, what is missing may be critical.
Such measures as protective orders and transfers can be requested with Unrestricted Reporting, yet there are no guarantees they will be granted—or in what time frames. Retribution or retaliation remain real possibilities, as do adverse actions by command. Personal safety may also remain a concern.
From another perspective, while Restricted Reporting is confidential, there will be situations where, practically speaking, that is not possible. Enough data must go to command even with Restricted Reporting so that in units with few women it may be immediately clear who the reporter is.
In the end, when all the issues are weighed, a victim (military or civilian) may not perceive reporting to be in their own best interests.