§ 103.4 - Policy.

§ 103.4 Policy.

It is DoD policy that:

(a) This part and DoDI 6495.02 implement implements the DoD SAPR policy and the DoD SAPR policy.

(

Program Unrestricted and Restricted Reporting options are available to Service members and their adult military dependents. For further information see paragraph (c) of Appendix A to this part.

(b) The DoD goal is a culture free of sexual assault by providing an environment of SAPR Program focuses on prevention, education and training, response capability (defined in DoDI 6495§ 103.023), victim support, reporting procedures, and appropriate accountability that enhances the safety and well being of all persons covered by this part and DoDI 6495.02.

(c

.

(c) While a sexual assault victim may disclose information to whomever he or she chooses, an official report is made only when a DD Form 2910 is signed and filed with a SARC or SAPR VA, or when a Military Criminal Investigative Organization (MCIO) investigator initiates an investigation.

(d) For Restricted and Unrestricted Reporting purposes, a report can be made to healthcare personnel, but healthcare personnel then immediately contact the SARC or SAPR VA to fill out the DD Form 2910.

(e) State laws or regulations that require disclosure of PII of the adult sexual assault victim or alleged perpetrator to local or State law enforcement shall not apply, except when reporting is necessary to prevent or mitigate a serious and imminent threat to the health or safety of an individual.

(f) Unless a DD Form 2910 is filed with a SARC, a report to a Chaplain or military attorney may not result in the rendering of SAPR services or investigative action because of the privileges associated with speaking to these individuals. A Chaplain or military attorney should advise the victim to consult with a SARC to understand the full scope of services available or facilitate, with the victim's consent, contact with a SARC.

(g) The SAPR Program shall:

(1) Focus on the victim and on doing what is necessary and appropriate to support victim recovery, and also, if a Service member, to support that Service member to be fully mission capable and engaged. The SAPR Program shall provide care that is gender-responsive, culturally

-

competent, and recovery-oriented.

(See § 103.3 of this part)

For further information see paragraph (c) of Appendix A to this part.

(2) Not provide policy for legal processes within the responsibility of the Judge Advocates General of the Military Departments provided in

Chapter 47 of Title

10

,

U.S.C.

(also known as and hereafter referred to as “UCMJ”) and

chapter 47 and the Manual for

Court's

Courts-Martial or for criminal investigative matters assigned to the

Judge Advocates General of the Military Departments and

IG

,

DoD.

(

d

h) Standardized SAPR requirements, terminology, guidelines, protocols, and guidelines for instructional materials shall focus on awareness, prevention, and response at all levels as appropriate.

(

e

i) The terms “Sexual Assault Response Coordinator (SARC)” and “SAPR Victim Advocate (VA),” as defined in

this part and the DoDI 6495.02

§ 103.3, shall be used as standard terms throughout the DoD to facilitate communications and transparency regarding SAPR capacity. For further information regarding SARC and SAPR VA roles and responsibilities, see

DoDI 6495.02.

paragraph (c) of Appendix A to this part.

(1) SARC. The SARC shall serve as the single point of contact for coordinating appropriate and responsive care for sexual assault victims. SARCs shall coordinate sexual assault victim care and sexual assault response when a sexual assault is reported. The SARC shall supervise SAPR VAs

,

but may be called on to perform victim advocacy duties.

(2) SAPR VA. The SAPR VA shall provide non-clinical crisis intervention and on-going support, in addition to referrals for adult sexual assault victims. Support will include providing information on available options and resources to victims.

(

f) Command sexual assault awareness and prevention programs, as well as law enforcement and criminal justice procedures that enable persons to be held accountable for their actions, as appropriate, shall be established and supported by all commanders. (g)

j) An immediate, trained sexual assault response capability

(defined in DoDI 6495.02)

shall be available for each report of sexual assault in all locations, including in deployed locations. The response time may be affected by operational necessities

,

but will reflect that sexual assault victims shall be treated as emergency cases. For further information see paragraph (

h)

c) of Appendix A to this part.

(k) Victims of sexual assault shall be protected from coercion, retaliation, and reprisal

in accordance with DoDD 7050.06. (i

. For additional information see paragraph (g) of Appendix A to this part.

(l) Victims of sexual assault shall be protected, treated with dignity and respect, and shall receive timely access to comprehensive healthcare (medical and mental health) treatment, including emergency care treatment and services

, as described in this part and DoDI 6495.02. (j) Emergency care

. For additional information see paragraph (c) of Appendix A to this part.

(m) Emergency care for victims of sexual assault shall consist of emergency

health care

healthcare and the offer of a

SAFE consistent with the “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and refer to DD Form 2911, “DoD Sexual Assault Medical Forensic Examination Report” and accompanying instructions. The victim shall be advised that even if a SAFE is declined, the victim is encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy

sexual assault forensic examination (SAFE). For additional information see paragraph (h) of Appendix A to this part.

(1) Sexual assault patients shall be given priority

, so that they

and shall be treated as emergency cases. A sexual assault victim needs immediate medical intervention to prevent loss of life or suffering resulting from physical injuries (internal or external), sexually transmitted infections, pregnancy, and psychological distress. Individuals disclosing a recent sexual assault shall, with their consent, be quickly transported to the exam site, promptly evaluated, treated for serious injuries, and then, with the patient's consent, undergo a SAFE

, pursuant to “Victim Centered Care” of “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and refer to DD Form 2911 and accompanying instructions

. For additional information see paragraph (ff) of Appendix A to this part.

(2) Sexual assault patients shall be treated as emergency cases, regardless of whether physical injuries are evident. Patients' needs shall be assessed for immediate medical or mental health intervention

pursuant to “Victim Centered Care,” and “Triage and Intake” of “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents

.

”

Sexual assault victims shall be treated uniformly

, consistent with “Victim Centered Care” of “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and DD Form 2911 and accompanying instructions,

regardless of their behavior because when severely traumatized, sexual assault patients may appear to be calm, indifferent, submissive, jocular, angry, emotionally distraught, or even uncooperative or hostile towards those who are trying to help. For additional information see paragraph (

k) Service members and

h) of Appendix A to this part.

(n) There will be a safety assessment capability for the purposes of ensuring the victim, and possibly other persons, are not in physical jeopardy. A safety assessment will be available to all Service members, adult military dependents, and civilians who are eligible for SAPR services, even if the victim is not physically located on the installation. The installation commander or the deputy installation commander will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim, regardless of whether he or she filed a Restricted or Unrestricted Report. Individuals tasked to conduct safety assessments must occupy positions that do not compromise the victim's reporting options. The safety assessment will be conducted as soon as possible, understanding that any delay may impact the safety of the victim.

(o) Service members and their dependents who are 18 years of age or older covered by this part

(see § 103.2(d)) and DoDI 6495.02

who are sexually assaulted have two reporting options: Unrestricted or Restricted Reporting. Unrestricted Reporting of sexual assault is favored by the DoD.

See DoDI 6495.02 for additional information on the DoD sexual assault reporting options and exceptions as they apply to Restricted Reporting. Consult DoDD 5400.11 and DoD 6025.18-R for protections of personally identifiable information

For additional information see paragraph (c) of Appendix A to this part. Protections are taken with PII solicited, collected, maintained, accessed, used, disclosed, and disposed during the treatment and reporting processes. For additional information see paragraph (j) of Appendix A to this part. The two reporting options are as follows:

(1) Unrestricted Reporting allows an eligible person who is sexually assaulted to access healthcare and counseling and request an official investigation of the allegation using existing reporting channels (e.g., chain of command, law enforcement, healthcare personnel, the SARC). When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified as soon as possible, respond, assign a SAPR VA, and offer the victim

health care

healthcare and a SAFE.

(2) Restricted Reporting allows sexual assault victims

(see eligibility criteria in § 103.2(c) of this part)

to confidentially disclose the assault to specified individuals (i.e., SARC, SAPR VA, or healthcare personnel), in accordance with

DoDD 5400.11

this part, and receive healthcare treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA, without triggering an official investigation. The victim's report to healthcare personnel (including the information acquired from a SAFE Kit), SARCs, or SAPR VAs will not be reported to law enforcement or to the victim's command, to initiate the official investigative process, unless the victim consents or an established exception

applies in accordance with DoDI 6495.02, state laws,

exists in State laws or federal regulations. When a sexual assault is reported through Restricted Reporting, a SARC shall be notified as soon as possible, respond, assign a SAPR VA, and offer the victim healthcare and a SAFE. For additional information see paragraph (c) of Appendix A to this part).

(i) Eligibility for Restricted Reporting. The Restricted Reporting option applies to Service

Members

members and their military dependents 18 years of age and older. For additional

persons who may be entitled to Restricted Reporting, see eligibility criteria in DoDI 6495.02.

information, see paragraph (c) of Appendix A to this part.

(ii) DoD

Dual Objectives

dual objectives. The DoD is committed to ensuring victims of sexual assault are protected; treated with dignity and respect; and provided support, advocacy, and care. The DoD

supports effective command awareness and preventive programs. The DoD

also strongly supports applicable law enforcement and criminal justice procedures that enable persons to be held accountable for sexual assault offenses and criminal dispositions, as appropriate. To achieve these dual objectives, DoD preference is for Unrestricted Reporting of sexual assaults to allow for the provision of victims' services and to pursue accountability. However, Unrestricted Reporting may represent a barrier for victims to access services, when the victim desires no command or law enforcement involvement. Consequently, the

Department

DoD recognizes a fundamental need to provide a confidential disclosure vehicle via the Restricted Reporting option.

(iii) Designated

Personnel Authorized

personnel authorized to

Accept

accept a Restricted Report. Only the SARC, SAPR VA, or healthcare personnel are designated as authorized to accept a Restricted Report.

(iv) SAFE

Confidentiality Under

confidentiality under Restricted Reporting. A SAFE and its information shall be afforded the same confidentiality as is afforded victim statements under the Restricted Reporting option. See

DoDI 6495.02

paragraph (c) of Appendix A to this part for additional information.

(v) Disclosure of

Confidential Communications

confidential communications. In cases where a victim elects Restricted Reporting, the SARC, assigned SAPR VA, and healthcare personnel may not disclose confidential communications or SAFE Kit information to law enforcement or command authorities, either within or outside the DoD

, except as provided in DoDI 6495

.

02.

In certain situations when information about a sexual assault comes to the commander's or law enforcement official's attention from a source independent of the Restricted Reporting avenues and an independent investigation is initiated, a SARC, SAPR VA, or healthcare personnel may not disclose confidential communications if obtained under Restricted Reporting

(see exceptions to Restricted Reporting in DoDI 6495

.

02).

Improper disclosure of confidential communications protected under Restricted Reporting, improper release of healthcare information, and other violations of this policy or other laws and regulations are prohibited and may result in discipline pursuant to the UCMJ, or other adverse personnel or administrative actions. See paragraph (

l)

c) of Appendix A to this part for additional information.

(p) Eligible victims must be informed of the availability of legal assistance and the right to consult with an SVC/VLC in accordance with section 1716 of the NDAA for Fiscal Year (FY) 2014 (Pub. L. 113-66).

(q) Enlistment or commissioning of personnel in the Military Services shall be prohibited and no waivers are allowed when the person has a qualifying conviction (see § 103.3) for a crime of sexual assault.

(

m

r) The

focus of this part and DoDI 6495.02 is on the victim of sexual assault. The

DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.

(

n) Victims must be informed of the availability of legal assistance and the right to consult with a Special Victims' Counsel (SVC)/Victims' Legal Counsel (VLC) in accordance with section 1716 of the National Defense Authorization Act for Fiscal Year 2014 (Pub. L. 113-66).

[78 FR 20445, Apr. 5, 2013, as amended at 81 FR 66188, Sept. 27, 2016]

s) Information regarding Unrestricted Reports should only be released to personnel with an official need to know or as authorized by law. Improper disclosure of confidential communications under Unrestricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions.

(t) The DoD will retain the DD Forms 2910, “Victim Reporting Preference Statement,” and 2911, “DoD Sexual Assault Forensic Examination (SAFE) Report,” for 50 years, regardless of whether the Service member filed a Restricted or Unrestricted Report as defined in this part. PII will be protected in accordance with 5 U.S.C. 552a, also known as the Privacy Act of 1974 (5 U.S.C. 552a) and 32 CFR part 310 and Public Law 104-191.

(u) For document retention and SAFE Kit retention for Unrestricted Reports:

(1) The SARC will enter the Unrestricted Report DD Form 2910 in the DSAID (see § 103.3) as an electronic record within 48 hours of the report, where it will be retained for 50 years from the date the victim signed the DD Form 2910. The DD Form 2910 is located at the DoD Forms Management Program website at https://www.esd.whs.mil/Directives/forms/.

(2) The DD Form 2911 shall be retained in accordance with the Department's internal policies. For further information, see paragraph (n) of Appendix A to this part. The DD Form 2911 is located at the DoD Forms Management Program website at https://www.esd.whs.mil/Directives/forms/.

(3) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in accordance with section 586 of Public Law 112-81, as amended by section 538 of Public Law 113-291. For further information see paragraph (n) of Appendix A to this part. When the forensic examination is conducted at a civilian facility through a memorandum of understanding (MOU) or a memorandum of agreement (MOA) with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the SAFE.

(4) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. Personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of the NDAA for FY 2012, as amended by section 538 of Public Law 113-291 and DoD regulations.

(v) For document retention and SAFE Kit retention for Restricted Reports:

(1) The SARC will retain a copy of the Restricted Report DD Form 2910 for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2910 will start from the date the victim signs the DD Form 2910. For Restricted Reports, forms will be retained in a manner that protects confidentiality.

(2) If the victim had a SAFE, the Restricted Report DD Form 2911 will be retained for 50 years, consistent with DoD guidance for the storage of PII. The 50-year time frame for the DD Form 2911 will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed. Restricted Report forms will be retained in a manner that protects confidentiality.

(3) If the victim had a SAFE, the SAFE Kit will be retained for 5 years in a location designated by the Military Service concerned. When the forensic examination is conducted at a civilian facility through an MOU or a MOA with the DoD, the requirement for the handling of the forensic kit will be explicitly addressed in the MOU or MOA. The MOU or MOA with the civilian facility will address the processes for contacting the SARC and for contacting the appropriate DoD agency responsible for accepting custody of the forensic kit. The 5-year time frame will start from the date the victim signs the DD Form 2910, but if there is no DD Form 2910, the timeframe will start from the date the SAFE Kit is completed.

(4) Personal property retained as evidence collected in association with a sexual assault investigation will be retained for a period of 5 years. In the event the report is converted to Unrestricted or an independent investigation is conducted, personal property may be returned to the rightful owner of such property after the conclusion of all legal, adverse action and administrative proceedings related to such incidents in accordance with section 586 of Public Law 112-81, as amended by section 538 of Public Law 113-291, and DoD regulations. However, victims who filed a Restricted Report may request the return of personal property obtained as part of the sexual assault forensic examination at any time in accordance with section 536 of Public Law 116-92, and DoD regulations.