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Sexual Assault FAQs -- Question 3

Q: What is the DoD's policy on sexual assault?

A: 1. Purpose. This guidance implements current Department of Defense Directive-Type Memoranda and provides interim Air Force policies and procedures for the prevention of and response to sexual assault. These policies and procedures are effective immediately. These and any additional sexual assault policies and procedures will be consolidated into a policy directive and instruction within 180 days of publication of final DoD directives. These policies address the requirements of the Ronald W. Reagan National Defense Authorization Act for fiscal year 2005, P.L. 108-375, October 28, 2004, Section 577(e). Compliance with these policies and procedures is mandatory.
2. Sexual assault is criminal conduct. It falls well short of the standards America expects of its men and women in uniform. It violates Air Force Core Values. Inherent in our Core Values of Integrity First, Service before Self, and Excellence in All We Do is respect: self-respect, mutual respect, and respect for our Air Force as an institution. Our core values and respect are the foundation of our Wingman culture¾a culture in which we look out for each other and take care of each other. Incidents of sexual assault corrode the very fabric of our Wingman culture; therefore we must strive for an environment where this type of behavior is not tolerated and where all Airmen are respected.
3. Definitions. All definitions are provided for use in this policy guidance.
Sexual Assault. The following definition of sexual assault has been directed by DoD and is for training and educational purposes only. This definition does not affect in any way the definition of any offenses under the Uniform Code of Military Justice. Commanders are encouraged to consult with their Staff Judge Advocate for complete understanding of this definition in relation to the UCMJ.

Sexual assault is a crime. Sexual assault is defined as intentional sexual contact, characterized by use of force, physical threat or abuse of authority or when the victim does not or cannot consent. Sexual assault includes rape, nonconsensual sodomy (oral or anal sex), indecent assault (unwanted, inappropriate sexual contact or fondling), or attempts to commit these acts. Sexual assault can occur without regard to gender or spousal relationship or age of victim.

"Consent" shall not be deemed or construed to mean the failure by the victim to offer physical resistance. Consent is not given when a person uses force, threat of force, coercion or when the victim is asleep, incapacitated, or unconscious.

Other Sex Related Offenses. Other sex-related offenses are defined as all other sexual acts or acts in violation of the Uniform Code of Military Justice that do not meet the above definition of sexual assault or the definition of sexual harassment as promulgated in DoD Directive 1350.2, Department of Defense Equal Opportunity, para E2.1.15. Examples of other sex-related offenses could include indecent acts with another and adultery.
Victim. For purposes of this policy, the term "victim" is synonymous with the commonly used term, "alleged victim". A victim is a person who alleges direct physical, emotional, or pecuniary harm as a result of the commission of a sexual assault or other crime of interpersonal violence and who has a connection with the installation. If the victim is incompetent or incapacitated, the term "victim" includes one of the following (in order of preference): spouse, legal guardian, parent, child, sibling, another family member, or another person designated by a court. Victims will be eligible for and provided services by the Air Force consistent with their legal status. The services contemplated range from referral to the appropriate civilian or foreign agency to the provision of all services available to an active duty member. Nothing in this policy shall be construed to authorize or require the provision of specific services (such as medical care or therapeutic counseling) unless the victim has an independent entitlement to such services under relevant statutes or Department of Defense directives.
Healthcare Provider. For purposes of this policy, healthcare provider includes those individuals who are employed or assigned as healthcare professionals, or are credentialed to provide health care services, at a medical or dental treatment facility or who are providing such care elsewhere at a deployed location or otherwise in an official capacity. The term also includes individuals assigned to the Military Treatment Facility (MTF) who are directed by or assigned to assist or otherwise support healthcare professionals in providing healthcare services.
Personal Identifying Information. For the purpose of this policy, this term applies to the victim and alleged assailant of a sexual assault and is that information which would disclose or have a tendency to disclose the person's identity. Personal identifying information includes the person's name or particularly identifying description (e.g., physical characteristics or identity by position, rank, or organization), or other information about the person or the facts and circumstances involved that could reasonably be understood to identify the person (e.g., a female in a particular squadron or dormitory when there is only one female assigned). In contrast, non-identifying personal information includes those facts and circumstances surrounding the sexual assault incident or individuals that generally describe the incident and individuals without tending to disclose an individuals' identity.
4. This policy guidance establishes the following responsibilities and authorities
The Assistant Secretary for Manpower and Reserve Affairs establishes policy and provides oversight and guidance for implementation of that policy in the Air Force.
The Inspector General (SAF/IG) is responsible for oversight of criminal investigations performed by the Air Force Office of Special Investigations and for other investigations and matters under his or her authority as Inspector General.
The Air Force General Counsel (SAF/GC) establishes legal policy and provides legal oversight and guidance for all aspects of sexual assault policy, and other matters related to sexual assault as needed, except those matters directly related to the administration of military justice.
The Deputy Chief of Staff, Personnel (AF/DP) assists in developing, coordinates, and executes personnel policy and essential procedural guidance for the management of sexual assault issues.
The Judge Advocate General (AF/JA) assists in developing, coordinates, and executes legal policy and essential procedural guidance for the management of sexual assault issues. TJAG is responsible for ensuring proper training of judge advocates and trial counsel in sexual assault matters. TJAG is the responsible official for administration of the Victim and Witness Assistance Program (VWAP).
The Chief of Chaplains (AF/HC) develops, coordinates, and executes policy and essential procedural guidance for the Chaplain Corps for the management of sexual assault issues. The Chief of Chaplains is responsible for ensuring proper training of the Chaplain's Corps in sexual assault matters.
The Surgeon General (AF/SG) develops, coordinates, and executes medical policy and essential procedural guidance for the management of sexual assault issues. AF/SG is responsible for ensuring proper training of medical personnel in sexual assault matters, and for ensuring appropriate management of medical records related to sexual assault addressed under restricted and unrestricted reporting.
The Director, Air Force Security Forces, develops, coordinates, and executes policy and essential procedural guidance for Security Forces for the management of sexual assault issues. The Director is responsible for ensuring proper training of Security Forces personnel in sexual assault matters.
The Commander. Air Force Reserve Command (AFRC/CC), develops specific sexual assault prevention and response programs for Air Force Reserve Command and oversees the AF Reserve in support of Air Force policies.
The Director of the Air National Guard (NGB/CF) develops specific sexual assault prevention and response programs for Air National Guard (ANG) military personnel and oversees ANG force in support of Air Force policies.
Major commands establish sexual assault prevention and response programs consistent with these policies and procedures and develop plans for addressing sexual assault issues during peacetime, contingencies, hostilities, and war. The MAJCOM vice commander or equivalent is designated as the responsible official to act for the major commander and supervises the Major Command Sexual Assault Response Coordinator (SARC).
The Major Command Sexual Assault Response Coordinator (SARC) is responsible for administering the MAJCOM sexual assault response and prevention program. The MAJCOM SARC, under the supervision of the MAJCOM Vice Commander or equivalent, will provide functional oversight and guidance for installation SARCs to ensure compliance with this and other applicable authority. MAJCOM SARCs may discuss, and may require discussion by subordinate SARCs and Victim Advocates, of covered restricted reporting communications from victims in order to assist or direct their performance of duties. However, such communication would not normally require any disclosure of personal identifying information but may include this information when necessary for effective oversight.
Installation commanders implement local sexual assault prevention and response programs. The installation Vice Commander or equivalent is designated as the responsible official to act for the installation commander and supervises the Installation Sexual Assault Response Coordinator (SARC). The Vice Commander will ensure the SARC is provided appropriate office space, office furnishings and supplies, including a locking file cabinet or other secure container.
Installation Sexual Assault Response Coordinator (SARC). Reporting directly to the installation Vice Commander, the SARC implements and manages the installation level Sexual Assault prevention and response programs.
Prevention. The SARC is responsible for assisting commanders in meeting annual sexual assault prevention and response training requirements, including newcomer and orientation briefings and will provide community education regarding available sexual assault prevention and response services. The SARC maintains, compiles and submits, for the Vice Commander, reports that are required by Air Force and/or DoD Directive. The SARC will ensure that available avenues of reporting sexual assault receive the widest possible publicity.
Victim Care. The SARC serves as the single point of contact for integrating and coordinating sexual assault victim care from an initial report of sexual assault, through disposition and resolution of issues related to the victim's health and well-being.
The SARC is responsible for ensuring a victim support system that provides a 24 hour/7 day a week sexual assault response capability for all victims within his or her designated area of responsibility, which is normally the installation to which assigned and any geographically separated units (GSUs) attached to the installation. The SARC must provide clear, accurate information on the available avenues for reporting sexual assault throughout his or her area of responsibility. Where appropriate, memoranda of understanding with other military installations may be used to ensure sexual assault response capability.
The SARC tracks the status of sexual assault cases in his or her designated area of responsibility and provides regular updates to the Vice Commander. When reporting relates to cases existing solely in restricted reporting channels, only non-identifying environmental information as defined in section 6.11 of this guidance will be provided to command authorities.
The primary focus of the Sexual Assault Response Coordinator is on victims of sexual assault, domestic violence and other interpersonal violence. Other victims should be assisted on a space-available basis. Dependent victims, other than spouses of military members, who are under the age of 18 will be referred to the Family Advocacy Office. Victims under the age of 18 who are not military members and do not qualify as dependents will be referred to the appropriate civilian agency.
The SARC is responsible for ensuring continuity of care and case management, as appropriate, in the event that the victim has a permanent change of station, is deployed, redeployed or discharged. The SARC should make personal contact with the SARC at the gaining or home station as appropriate. This is especially appropriate for members of the Air Force Reserve or National Guard. Additional guidance on protocols for ensuring care between installations is forthcoming.
SARCs will be expected to attend the next available Air Force formal SARC training and will coordinate on a case by case basis, with MAJCOM or Air Force Personnel Center SARCs, until training is completed. The Standardized Civilian Position Description for the SARC contains a more detailed list of duties and responsibilities.
The SARC is responsible for recruiting, screening, interviewing, selecting, training and supervising victim advocates.
The SARC will serve as chairperson of the Sexual Assault Case Management Group.
The SARC will maintain records as necessary to identify victims and track services provided. These records will not contain detailed information concerning the nature of the assault or related information. The SARC will maintain all records that could serve to identify the victim in a secure container and strictly control access to the information. Guidance on Freedom of Information Act and Privacy Act matters will be issued separately.
Victim Advocate (VA). Air Force Victim Advocates provide essential support, liaison services and care to the victim. Responsibilities include providing crisis intervention, referral and ongoing non-clinical support, including information on available options and resources to assist the victim in making informed decisions about the case. VA services will continue until the victim states support is no longer needed.
VAs are volunteers who must possess the maturity and experience to assist in a very sensitive situation. Only active duty military personnel and DoD civilian employees selected by the SARC may serve as VAs. Personnel assigned to the MTF, the Office of the Staff Judge Advocate, or the Office of the Wing Chaplain are not eligible to serve as victim advocates due to the potential conflict of interest.
The appropriate unit commander or agency head must concur before a volunteer can be selected as a VA. A supervisor statement of understanding is provided at Attachment 1.
To the extent required to ensure sexual assault response capability, appropriate military personnel may be detailed to serve as victim advocates, particularly in GSUs and deployed locations.
VAs do not provide counseling or other professional services to a victim. Appropriate agencies will provide clinical, legal, and other professional services.
VAs may accompany the victim, at the victim's request, during investigative interviews and medical examinations. However, they and the victims that they accompany must be made aware that their presence could later result in them being called as witnesses in court-martial or administrative proceedings.
The Interim Victim Support Liaison program will cease on 14 June 2005. Existing Interim Victim Support Liaisons who wish to be victim advocates should submit an application to the SARC and attend training.
Supervision of Victim Advocates. The SARC recruits, screens, interviews, selects, and supervises the installation Victim Advocates. A standard/template list of responsibilities for the advocates and a standard application, selection criteria, and interview questions for use by the SARC will be provided by separate cover. SARCs ensure that Victim Advocates receive required training before being assigned to a victim.
Domestic Violence Victim Advocates. The Family Advocacy Program (FAP) currently has domestic violence advocates who are contractor personnel. These advocates will be moved from the FAP program to supervision by the SARC. They will provide advocacy services to both domestic violence victims and sexual assault victims after receiving required sexual assault training
First Responders. First responders are those individuals from functional communities who are normally the first to respond to a sexual assault incident or the report of an incident. They normally include as a minimum:, Security Forces, AFOSI, SG, and the SARC. They may also include an installation chaplain or judge advocate. The SARC may choose to establish a Sexual Assault Response Team (SART) or Victim Support Team to ensure efficient and timely integrated response to victims.
Case Management Group. DoD Directive requires the establishment of a multi-disciplinary case management group, chaired by the SARC, to meet monthly to review unrestricted cases, improve reporting, facilitate monthly victim updates, and to discuss process improvement to ensure system accountability and victim access to quality services as needed. The group membership includes the SARC, VA, AFOSI, SF, SG including mental health, HC, JA and each reporting victim's commander. Under restricted reporting, the group membership is limited to the SARC, assigned victim advocate and SG member. The case management group will review sexual assault trends for the area of responsibility, including consideration of the environmental information provided to command under restricted reporting. The Group will provide a report to the Vice Wing Commander no less than quarterly, including recommendations.
5. Operational Policy
Training on Sexual Assault Prevention and Response.
Initial sexual assault awareness/outreach training will be distributed in early June, 2005. The purpose of this video-supported training is to increase understanding of the impact of sexual assault on individuals, the unit and the mission; to emphasize the wingman concept and the importance of the Air Force Core Values and respect on prevention; and stress the significance of proper victim care.
Military Education. HQ AETC is developing training to be used in Basic Military Training, ROTC, OTS, Technical Training Schools, First Term Airmen's Course, and Professional Development programs. Training will be designed to fit the appropriate audience.
SARC and Victim Advocate Training. SARCs must attend Air Force formal training. They will in turn provide training for the installation volunteer Victim Advocates. SARCs will also be responsible for ongoing and recurring training requirements for their assigned geographic areas of responsibility.
First Responder Training. First responders will be trained as required to discharge their responsibilities in preventing and responding to sexual assault. Air Staff functionals will ensure training meets DoD and functional requirements as established by DTM JTF-SAPR-011, Training Standards for Sexual Assault Response Training, and DTM JTF-SAPR-013, Essential Training Tasks for a Sexual Assault Response Capability. Air Staff functionals will review current and future training opportunities to ensure their communities are prepared.
Reporting Sexual Assault. Any Air Force military member or civilian employee, other than those personnel authorized to receive confidential communications or otherwise exempted by operation of law, regulation or policy, who receives a report of a sexual assault incident from a subordinate in the individual's supervisory chain, shall, as soon as possible, report the matter to the Air Force Office of Special Investigations (AFOSI). Other military members and civilian employees who become aware of a sexual assault incident are strongly encouraged to report the incident. If a report cannot be made to the AFOSI, the report will be made to the Air Force Security Forces, who will in turn notify the AFOSI as required by AF instruction. The AFOSI will, in turn and as soon as possible, inform the victim's unit commander and the SARC of the sexual assault incident.
Response to a Sexual Assault Incident
Upon notification, the SARC will immediately assign a VA to the victim. To the extent practicable, the assigned VA should not be from the same unit as the victim.
The assigned VA will immediately contact the victim. Unless VA assistance is declined, the VA will provide the victim accurate information on the sexual assault response process, including the option of unrestricted or restricted reporting as applicable. The VA will inform the victim of the availability of healthcare, including the option of a forensic medical examination and the collection of evidence. The victim will be requested to sign a Victim Preference Statement indicating his or her choice of restricted or unrestricted reporting and understanding of the consequences of his or her decision (attachment 2).
The assigned VA and the SARC will continue to monitor the case through disposition of the case and resolution of the victim's health and well-being. The SARC will provide updates to the victim and commanders as appropriate and in accordance with this policy. The VA will provide referral and ongoing non-clinical support to the victim. Services will continue until the victim indicates services are no longer required, or the SARC makes this determination based on the victims response to offers of assistance.
Prevention and Response for the Deployed Environment.
CENTAF AOR. Trained military SARCs will be identified for AEF rotation to the CENTAF designated Air Expeditionary Wings. COMUSCENTAF will ensure response capability is identified for those smaller areas that do not constitute a Wing. CENTAF, working with the Air Force Personnel Center and the AEF Center, will ensure deployed commanders are informed of trained military Victim Advocates who are in the deployed environment.
Commanders of AF forces deployed to locations outside the CENTAF AOR must provide a sexual assault response capability consistent with the requirements of this instruction and ensure unit personnel are trained prior to departure.
In accordance with DOD policy, deploying members will receive training on sexual assault issues. HQ AETC is developing standard AEF pre-deployment training. Until fielded, commanders will ensure training includes:
· Policies addressing sexual assault prevention and response, including disposition of criminal allegations, and the care of victims;

· Risk reduction factors tailored to the specific deployment location;

· Orientation on the history, customs, mores, and religious practices of the destination country or region;

· If forces will serve as part of a coalition, comparable relevant information on the coalition partners should also be provided;

Procedures for reporting a sexual assault to ensure personnel are aware of the options and support systems available during the deployment, to include victim advocates and chaplains.
6. Confidentiality and Restricted Reporting.
Implementation. The Department of Defense has directed the implementation of confidentiality in the form of a restricted reporting option that enables military members to report allegations of sexual assault to specified personnel, without triggering an investigation. This reporting option gives the individual access to medical care, counseling and a victim advocate but does not initiate the investigative process. The option of restricted reporting is not available until 14 June 2005. Until 14 June 2005, any reports of sexual assault received by SARCs or others who will be authorized to receive restricted reports will not be treated as confidential within the terms of this policy. This policy supercedes all regulatory and policy guidance within the Department of the Air Force not expressly mandated by law that is inconsistent with its provisions, or would preclude its full implementation. OPRs of Air Force publications (particularly in the 31, 36, 39, 40s, 51, 71 and 90 series) should immediately review their publications to ensure that required modifications are completed.
DoD and the Air Force are committed to ensuring that victims of sexual assault are protected, treated with dignity and respect, and provided support, advocacy and care. Our policy strongly supports effective command awareness and prevention programs, as well as law enforcement and criminal justice activities that maximize accountability and prosecution of sexual assault perpetrators. To achieve these objectives, we recommend prompt, complete, unrestricted reporting of sexual assault allegations to activate victim services and accountability responses. Victims should be appropriately encouraged to make unrestricted reports. However, the Department of Defense has recognized there are significant barriers which deter some victims from reporting sexual assaults. The most common barriers are listed below:
· Lack of privacy/confidentiality

· Stigma, shame, fear

· Fear of being reduced in the eyes of one's commander or colleagues

· Fear of disciplinary action due to a victim's own misconduct

· Fear of re-victimization

· Fear of operational impacts on training, security clearances, and overseas deployment

· Fear of adverse impacts on the individual's unit or mission accomplishment

· While the Air Force makes every effort to treat victims with respect and dignity, and to respect their privacy to the maximum extent of the law, requiring individuals to report sexual assault allegations to command and law enforcement in order to obtain victim care services may cause some individuals to elect not to report and consequently forgo assistance and care

Sexual assault is the most under-reported violent crime in the military and American society. Although the victim's decision to report is a crucial step following a sexual assault, reporting is often precluded by the victim's desire that no one know what happened. Commanders have a dual responsibility to ensure community safety and due process of law and protect the privacy of victims under their command. A system that promotes privacy and respects confidentiality should have a positive impact on reducing the barriers to unrestricted reporting by enhancing the trust of victims in Air Force policies and procedures.
Restricted reporting is intended to give a victim additional time and increased control over the release and management of the victim's personal information, and to empower the victim to seek relevant information and support to make an informed decision about participating in the criminal process. A victim who receives appropriate care and treatment and is provided an opportunity to make an informed decision about filing an unrestricted report with law enforcement or command authorities is more likely to develop increased trust that the victim's needs are a primary concern. Even if the victim never elects to make an unrestricted report, the limited, non-identifying information that SARCs are authorized to provide command has the potential to give commanders a clearer picture of the sexual violence within their commands and will enhance a commander's ability to provide a safe environment. It is a carefully considered decision that the predicted benefits of restricted reporting (providing sexual assault victims this form of support and increased number of reports) outweigh the potential adverse impact on the Air Force's ability to investigate and prosecute cases.
Who May Make A Restricted Report. Restricted reporting is available only to military personnel of the Armed Forces and the Coast Guard when attached to the Department of Defense. Military personnel include members on active duty and members of the Reserve component (Reserve and National Guard) provided they are performing federal duty (active duty training or inactive duty training and members of the National Guard in Federal (Title 10) status). Members of the Reserve Component not performing Federal duty are not eligible. Retired members of any component are not eligible. Dependents are not eligible. Air Force civilian employees are not eligible.
Examples: A member of a Category A reserve unit doing weekend duty, an individual mobilization augmentee performing inactive duty for training, a member of the Air National Guard performing Federal duty are all eligible to make a restricted report on or after 14 June 2005. An active duty member of the Coast Guard not serving in the DOD, a dependent, civilian employee, Air Reserve Technician not in military status, or Guard member performing duty under Title 32 of the United States Code, or retiree is not eligible. A civilian employee who is a member of the AF Reserve but is not performing duty is not eligible.

Who May Receive A Restricted Report. Only SARCs and healthcare providers may receive restricted reports of sexual assault at any time on or after 14 June 2005. Consistent with current policy, a report may also be made to a chaplain. A report to a chaplain is not a restricted report under this policy but is a communication that may be protected under the Military Rules of Evidence or applicable statutes and regulations. The restricted reporting process does not affect any privilege recognized under the Military Rules of Evidence (MRE). To be considered a restricted report, a report to a chaplain or other individual with a privilege recognized under the MREs must be reported or forwarded to a SARC or healthcare provider. VAs may receive restricted reports from a designated victim only after they have been appointed by the SARC to act as the victim advocate for that individual. Volunteer victim advocates will be required to sign a Victim Advocate Statement of Understanding (attachment 3) regarding disclosure of covered communication. Healthcare providers will provide appropriate emergency medical care and immediately notify the SARC to initiate the restricted reporting process. The requirement of AFI 44-102, Community Health Management, paragraph 2.36, to report incidents of sexual assault to the AFOSI or other authorities as appropriate is expressly waived for restricted reports.
A report made to a healthcare provider under circumstances where it cannot reasonably be ascertained whether it is intended as a restricted report will be treated as a restricted report until the SARC can ascertain the victim's intentions.
An individual who has been identified as a victim advocate but has not been assigned a case, when contacted by a victim will not enter into a discussion of the circumstances but will immediately refer the victim to the SARC. The VA is not required to report the initial contact to law enforcement officials.
Example: An individual who has been identified as a volunteer victim advocate is stopped in the parking lot by a military member who states she has been sexually assaulted. The VA has not been designated to act as the victim advocate for that member. That conversation does not qualify as a restricted report. The VA should immediately stop the conversation and put the member in contact with the SARC who will work with the member to appoint a VA and determine whether to initiate the restricted reporting process. The VA is not required to report the initial contact in the parking lot to law enforcement officials.
Offenses Eligible for Restricted Reporting. Only allegations of sexual assault may be made under the restricted reporting option. Sexual assault is an umbrella term that includes allegations of rape (intercourse by force and without consent), forcible sodomy (unnatural carnal copulation with another person without consent, including placing the sexual organ into the mouth or anus of another person), indecent assault (nonconsensual touching in a sexual manner) or attempts to commit any of these offenses. Allegations of assault that do not constitute sexual assault such as assault consummated by a battery or offenses considered to be domestic violence but not involving sexual assault may not be made under this option.
If the report contains an allegation of sexual assault and qualifies for restricted reporting, any other offenses revealed by the victim are considered covered communications (6.7) and will not be disclosed except as authorized below.
When reports may be made. Restricted reports may be made any time on or after 14 June 2005. Any report alleging sexual assault made before that date is an unrestricted report and must be forwarded to the AFOSI or other criminal investigative service. Reports made on or after 14 June 2005 may be treated as restricted reports regardless of the date the assault allegedly occurred. For example, a military member reports a sexual assault that occurred on 10 May 2005. As long as the report is made to a qualifying individual on or after 14 June 2005, the restricted reporting option is available.
Effect of a Restricted Report. If an individual makes a restricted report of a sexual assault, any oral, written or electronic communication of personally identifiable information made by the individual to the SARC, assigned VA or a healthcare provider or by and between the individual, SARC, assigned VA and healthcare provider related to the sexual assault or alleged assailant is considered a covered communication and may not be disclosed to any law enforcement official, command authority, or other entity not authorized to receive restricted reports, except as provided in the following exceptions:
· Command officials or law enforcement (including SF and AFOSI or other criminal investigative service) when the disclosure is authorized in writing by the victim;
· Command officials or law enforcement when disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of the individual or another;
· Disability Retirement Boards and officials when disclosure by a healthcare provider is required for fitness for duty for disability retirement determinations, limited to only that information which is necessary to process the disability retirement determination;
· SARC, VAs or healthcare provider when disclosure is necessary for the supervision of direct victim services;
· Military or civilian courts of competent jurisdiction when disclosure is ordered by or required by federal or state statute.
SARCs may consult as necessary with the MAJCOM, AFPC SARC or HQ AF SARC for guidance as to whether disclosure is appropriate under this policy. The SARC will consult with the servicing staff judge advocate in the same manner as other recipients of privileged information to determine if the criteria apply and if they have a duty to obey. Until those determinations are made, only non-identifying information should be disclosed.
If a victim tells healthcare providers that a sexual assault has occurred, the SARC will be notified. Per DoD 6025.18-R, "DoD Health Information Privacy Regulation", C7.1, pertinent protected health information from the victim's medical records may be released to the appropriate authority designated in paragraph 6.7 without the consent of the victim. Such release, however, requires appropriate accounting in accordance with Chapter 13 of the regulation.
Healthcare providers may also convey to command any possible adverse duty impact related to the victim's medical condition and prognosis in accordance with DoD 6025.18-R, as well as any applicable Air Force Instructions, though any disclosure by healthcare personnel made under this provision should include only the minimum necessary relevant information regarding the medical situation and not disclose any covered communication.
Unauthorized disclosure of a covered communication, improper release of medical information and other violations of this policy may result in action under the Uniform Code of Military Justice for military personnel, or other personnel or administrative action for all personnel, including loss of medical credentials.
The victim will acknowledge his or her understanding of the restricted reporting process, that restricted reporting may limit the ability of the Air Force to investigate and take action, and that DoD and Air Force policy favors unrestricted reported. See Attachment 2 to this memorandum for the acknowledgement to be used to record this understanding.
Medical Records. Guidance for maintaining medical records related to a restricted report of sexual assault will be provided within SG channels.
Duration of a Restricted Report. In addition to enhancing victim care, the intent of offering a restricted reporting option is to enhance the likelihood that an individual will make an unrestricted report of a sexual assault. When an individual elects to make an unrestricted report to command and law enforcement, the need for curtailing knowledge of covered communications ceases. When an unrestricted report is made, the SARC, VA and involved healthcare providers may disclose any information provided by the victim in accordance with paragraph 7. Healthcare providers should refer to para 6.8.5 below. Personnel with an official need to know will normally include commanders of the victim and subject, law enforcement, and legal personnel. "Legal personnel" includes both members of the servicing office of the staff judge advocate and defense counsel for any subject.
In the event that information about a sexual assault is disclosed to command from a source independent of restricted reporting avenues or to law enforcement from other sources, and an investigation into an allegation of sexual assault is initiated, the SARC, VA and healthcare provider will not disclose covered communications unless the victim authorizes the disclosure in writing or another exception established under para 6.7 applies.
In the event a disclosure is made under the authority of para 6.7 above, the disclosure will be limited to that necessary to satisfy the purpose of the disclosure. Further disclosure will not be made unless the victim authorizes the disclosure in writing.
If a SARC, VA or healthcare provider makes an unauthorized disclosure of a covered communication, the SARC, VA and healthcare provider will not disclose additional covered communications until the victim authorizes the disclosure in writing or another exception established in para 6-7 applies. As noted above, the unauthorized disclosure of a covered communication may result in disciplinary action.
The confidentiality policy does not create an actionable right in the alleged offender or the victim and does not constitute a grant of immunity for any actionable conduct by the offender or victim. Any covered communication that has been disclosed, whether disclosure was authorized or unauthorized, may be used as the basis for disciplinary action against the offender or victim as appropriate. However, disposition authorities should take these circumstances into account in determining what, if any, action may be appropriate regarding the victim.
Healthcare providers are reminded of the restrictions imposed by AFI 44-109, Mental Health, Confidentiality, and Military Law, and Military Rule of Evidence (MRE) 513 on disclosure of information. In situations where restrictions on covered communications are applicable or have been waived, the healthcare provider must also comply with AFI 44-109 and MRE 513 as applicable.
Unrestricted Report. Any report of a sexual assault made through normal reporting channels, including the victim's chain of command, law enforcement, and the AFOSI or other criminal investigative service is considered an unrestricted report. A report made to a SARC or healthcare provider where the individual does not elect restricted reporting, is considered an unrestricted report.
The SARC will be notified of any unrestricted report and will assign a VA to the individual. Details of the allegation will be provided only to those personnel who have a legitimate need to know.
Independent Report. Should information about a sexual assault be disclosed to command from a source independent of restricted reporting avenues or to law enforcement from other sources, and an investigation into an allegation of sexual assault is initiated, that report is considered an independent report. An official investigation may be initiated based on that independently acquired information.
When the SARC or victim advocate learns that a law enforcement official has initiated an official investigation that is based upon independently-acquired information and after consulting with the law enforcement official responsible for the investigation, the SARC or victim advocate will notify the victim, as appropriate. However, covered communications from the restricted report will not be released for the investigation unless the victim authorizes the disclosure in writing or another exception established under para 6.7 applies.
Notification to Command of a Restricted Report. Within 24 hours of receipt of a restricted report of an alleged sexual assault, the SARC will notify the Vice Wing Commander that a restricted report has been made. The SARC will provide the following information while ensuring that the information is not sufficient to identify the victim or incident. The incident will be characterized as recent (within the last 30 days) or not recent (older than 30 days).
· Date and time (night or day)
· General information as to location (a dorm, parking lot, off base etc)
· Number of alleged assailants
· Number of alleged victims
· Nature of assault (rape, forcible sodomy, indecent assault etc)
Because non-identifying information under the restricted reporting option is intended to provide commanders with general environmental information about the number and types of sexual assaults on the installation and is to be used to provide a better understanding of incidents of sexual assault, neither commanders nor law enforcement officials may initiate investigations based on information provided by SARCs under 6.11 above. Commanders, however, may use the information to enhance preventive measures, to enhance the education and training of their personnel, and to more closely scrutinize their organization's climate and culture for contributing factors, but may not use the information for investigative purposes or in a manner that is likely to discover, disclose, or reveal the identities being protected.
7. Use of Information. In cases of an unrestricted report of a sexual assault or information concerning a sexual assault is otherwise known, information concerning the victim and the offense will only be provided to governmental entities or persons with an established official "need to know." Those who are deemed to have a valid "need to know" in the Air Force routinely include law enforcement, the commanders of the victim and subject, legal personnel, the SARC and VA, and medical providers as required to provide health care. Information concerning a victim will only be disclosed beyond governmental purposes as required by law. The intent of this restriction is to protect the privacy of the victim. Commanders should examine all procedures involved in the use of sexual assault information to ensure the goals of this policy are met. All disclosures must comply with the provisions of the Privacy Act, 5 USC § 552a and AFI 33-332, Air Force Privacy Act Program.
8. Collection and Preservation of Evidence for Sexual Assault Incidents
Proper handling of evidence is key to resolving investigations and prosecution. It is imperative to ensure a standardized approach to evidence collection is used in order to maintain investigative credibility and integrity. All items obtained, seized or received must be tagged and treated as evidence until disposition is authorized. Most importantly, evidentiary items must be positively identifiable, strictly accounted for, and properly safeguarded with special emphasis placed on accurately documenting the chain of custody.
Unrestricted Reports. The Air Force Office of Special Investigations (AFOSI) has the mission to investigate felony crimes for the United States Air Force.
All AFOSI Special Agents are trained to properly seize evidence, fill out evidence tags, maintain control of seized evidence, properly turn in evidence to the unit evidence custodian, and dispose of evidence no long needed. The unit evidence custodian is specially trained in storage, accountability, transfer and disposition of evidence. To optimize the collection and preservation of evidence, the AFOSI Organizational Policy Branch, in coordination with the command's Forensic Science specialists and assigned Staff Judge Advocates have developed detailed guidance with regard to the collection of all types of evidence. Additionally, the AFOSI has established a position at the United States Army Criminal Investigations Laboratory to ensure the expeditious processing of evidence related to Air Force investigations.
In order to maintain a standardized approach to collecting material of potential evidentiary value, AFOSI is designated as the Office of Primary Responsibility for evidence collection during sexual assault investigations. Accordingly, AFOSI guidance and procedures relating to evidence collection, handling and processing will be considered the Air Force standard and will be followed for unrestricted reports, at all times.
Restricted Reports. When the SARC receives a restricted report of a sexual assault, the victim will be informed of the availability of healthcare, including the option of a forensic medical examination and the collection of evidence. When requested, the forensic examination will be conducted by properly qualified forensic medical personnel and evidence will be processed in a manner that preserves forensic viability and a valid chain of custody. Additional guidance will be forthcoming pending DOD policy.
9. Keeping the Victim Informed. Working with the SARC, the victim's unit commander ensures the victim receives, at a minimum, a monthly update on the current status of all investigative, medical, legal, and command proceedings pertaining to the case, until final disposition of the sexual assault. Final disposition means the conclusion of the later of any judicial (convening authority action), nonjudicial (legal sufficiency review), or administrative action (including administrative separation actions (execution of discharge)) taken in response to the sexual assault. These requirements are independent of other requirements of notification established by law or regulation. This update may be in writing or in person, as appropriate. This requirement is in addition to those established by the Victim-Witness Assistance Program (VWAP), but should be coordinated with VWAP liaisons.
10. Addressing Victim Collateral Misconduct in Sexual Assault Cases. An investigation into the facts and circumstances surrounding an alleged sexual assault may develop evidence that the victim engaged in misconduct like underage drinking or other related alcohol offenses, adultery, drug abuse, fraternization or other violations of instructions, regulations or orders. In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, and Air Force Instructions, commanders are responsible for ensuring victim misconduct is addressed in a manner that is consistent and appropriate to the circumstances. Commanders have the authority to determine the appropriate disposition of alleged victim misconduct, to include deferring disciplinary action until after disposition of the sexual assault case. Commanders should exercise this authority in appropriate cases. When considering what corrective actions may be appropriate, commanders must balance the objectives of holding members accountable for their own misconduct, with the intent to avoid unnecessary additional trauma to sexual assault victims and to encourage reporting of sexual assaults. The gravity of any collateral misconduct by the victim, and its impact on good order and discipline, should be carefully considered in deciding what, if any, corrective action is appropriate. Commanders must also be mindful of any potential statute of limitations when determining whether to defer action.
11. Procedures for Disciplinary Action. Congress has enacted the Uniform Code of Military Justice, the President has promulgated the Manual For Courts-Martial, and DoD and the Air Force have issued implementing regulations concerning the disposition of criminal behavior and other infractions that affect good order and discipline or are service discrediting. Commanders are expected to consult with their servicing staff judge advocate and use the tools available to resolve any allegations.
12. Sexual Assault Case Disposition Authority. To ensure consistent and appropriate level of command attention and the full responses required by the nature of sexual assault cases, group commanders of Air Force Groups or higher will sign the commander's report of disposition setting out action taken in all sexual assault cases. Authority to dispose of cases that resulted from an allegation of sexual assault is withheld from squadron section commanders and is reserved to commanders of squadrons and above. A commander authorized to dispose of cases involving an allegation of sexual assault may do so only after receiving the advice of the servicing staff judge advocate. As with any case, any disposition decision on a case involving an allegation of sexual assault is subject to review by superior commanders as appropriate. Failure to comply with this policy does not create any independent rights for an individual either alleging or accused of a sexual assault related allegation.
13. Review of Administrative Separation Actions Involving Victims of Sexual Assault. Administrative separation actions involving victims of sexual assaults will be processed as required by the applicable Air Force Instruction. The minimum review level in Air Force regulation is the special court martial convening authority which is normally a wing commander or higher. The separation approval authorities designated by the applicable Air Force Instruction satisfy the DoD policy to ensure that all such separation actions are the product of mature and experienced deliberation and the ultimate determinations are consistent and appropriate.
When a commander proposing administrative or medical separation action was previously aware, or is made aware by the respondent or others, that the member has filed a past complaint, allegation or charge that they were a victim of sexual assault, the proposing commander shall ensure the separation authority is aware the discharge proceeding involves a victim of sexual assault, by including the following statement in the recommendation for discharge memorandum. "The respondent, (grade, name), reported being a past victim of sexual assault." The discharge authority must be provided sufficient information concerning the alleged assault and the victim's status to ensure a full and fair consideration of the victim's military service and particular situation.
14. Collaboration with Civilian and Military Authorities for Sexual Assault Victim Support. The SARC, working with appropriate base agencies, will ensure Memoranda of Understanding (MOU) are developed with appropriate authorities and community service providers addressing the coordination of support and an adequate standard of care for Air Force personnel who seek support off the installation. Such arrangements are beneficial in order to:
· Provide medical and counseling services related to care for victims of sexual assault that may not be available on military installations, but are available in the civilian community
· Provide practical training to military health providers in order to maintain optimal readiness and ensure the same level of care is provided in deployed, overseas, and remote environments
· Enhance the sharing of information concerning investigations, arrests, and prosecutions of reported sexual assault cases, as well as sexual assault care and forensic examinations involving military personnel
· Enhance training through collaboration with local community crisis counseling centers
· Exchange non-identifying sexual assault data concerning military personnel
· Coordinate medical and counseling services between military installations or deployed units related to victim care
15. Commander's Response to Allegations of Sexual Assault.
Commanders notified of a sexual assault through unrestricted reporting must take immediate steps to ensure the victim's physical safety, emotional security and medical treatment needs are met, and that the AFOSI or appropriate criminal investigative agency is notified. The appropriate commanders should determine whether temporary reassignment or relocation of the victim or subject is appropriate.
Commanders should consider whether no contact orders or Military Protective Orders (DD Form 2873) are required.
Attachment 4 is a DoD checklist for assisting commanders in responding to allegations of sexual assault. Its primary objective is to assist commanders in safeguarding the rights of the victim and the subject, as well as addressing appropriate unit standards and interests. In all cases, commanders should seek the advice of the staff judge advocate in using the checklist before taking action.