§ 105.8 - Reporting options and Sexual Assault Reporting Procedures.

§ 105.8 Reporting options and Sexual Assault Reporting Procedures.

(a) Reporting options. Service members and military dependents 18 years and older who have been sexually assaulted have two reporting options: Unrestricted or Restricted Reporting. Unrestricted Reporting of sexual assault is favored by the DoD. However, Unrestricted Reporting may represent a barrier for victims to access services, when the victim desires no command or DoD law enforcement involvement. Consequently, the DoD recognizes a fundamental need to provide a confidential disclosure vehicle via the Restricted Reporting option. Regardless of whether the victim elects Restricted or Unrestricted Reporting, confidentiality of medical information shall be maintained in accordance with DoD 6025.18-R.^[5] DoD civilian employees and their family dependents and DoD contractors are only eligible for Unrestricted Reporting and for limited emergency care medical services at an MTF, unless that individual is otherwise eligible as a Service member or TRICARE beneficiary of the military health system to receive treatment in an MTF at no cost to them in accordance with 32 CFR part 103.

(1) Unrestricted reporting. This reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access healthcare treatment and the assignment of a SARC and a SAPR VA. When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified, respond or direct a SAPR VA to respond, and offer the victim healthcare treatment and a SAFE, and inform the victim of available resources. The SARC or SAPR VA will explain the contents of the DD Form 2910 and request that the victim elect a reporting option on the form. If the victim elects the Unrestricted Reporting option, a victim may not change from an Unrestricted to a Restricted Report. If the Unrestricted option is elected, the completed DD Form 2701, which sets out victims' rights and points of contact, shall be distributed to the victim in Unrestricted Reporting cases by DoD law enforcement agents. If a victim elects this reporting option, a victim may not change from an Unrestricted to a Restricted Report.

(2) Restricted reporting. This reporting option does not trigger an investigation. The command is notified that “an alleged sexual assault” occurred, but is not given the victim's name or other personally identifying information. Restricted Reporting allows Service members and military dependents who are adult sexual assault victims to confidentially disclose the assault to specified individuals (SARC, SAPR VA, or healthcare personnel) and receive healthcare treatment and the assignment of a SARC and SAPR VA at DoD installations. A sexual assault victim can report directly to a SARC, who will respond or direct a SAPR VA to respond, and offer the victim healthcare treatment and a SAFE, and explain to the victim the resources available through the DD Form 2910, where the reporting option is elected. The Restricted Reporting option is only available to Service members and adult military dependents. Restricted Reporting may not be available in all cases, (See §§ 105.3 and 105.8(a)(6).) If a victim elects this reporting option, a victim may convert a Restricted Report to an Unrestricted Report at any time. The conversion to an Unrestricted Report will be documented with a signature by the victim and the signature of the SARC or SAPR VA in the appropriate block on the DD Form 2910.

(i) Only the SARC, SAPR VA, and healthcare personnel are designated as authorized to accept a Restricted Report. Healthcare personnel, to include psychotherapist and other personnel listed in Military Rules of Evidence (MRE) 513 pursuant to the Manual for Courts-Martial, United States, who received a Restricted Report (meaning that a victim wishes to file a DD Form 2910 or have a SAFE) shall contact a SARC or SAPR VA in accordance with requirements in § 105.11, to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed and retained.

(ii) A SAFE and the information contained in its accompanying Kit are provided the same confidentiality as is afforded victim statements under the Restricted Reporting option. See § 105.12 of this part.

(iii) In the course of otherwise privileged communications with a chaplain, SVC/VLC, or legal assistance attorney, a victim may indicate that he or she wishes to file a Restricted Report. If this occurs, a chaplain, SVC/VLC, and legal assistance attorney shall, with the victim's consent, facilitate contact with a SARC or SAPR VA to ensure that a victim is offered SAPR services and so that a DD Form 2910 can be completed. A chaplain, SVC/VLC, or legal assistance attorney cannot accept a Restricted Report.

(iv) A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between a victim and a SARC and SAPR VA, in a case arising under the UCMJ, if such communication is made for the purpose of facilitating advice or supportive assistance to the victim in accordance with MRE 514 of the Manual for Courts-Martial, United States.

(v) A sexual assault victim certified under the personnel reliability program (PRP) is eligible for both the Restricted and Unrestricted Reporting options. If electing Restricted Reporting, the victim is required to advise the competent medical authority of any factors that could have an adverse impact on the victim's performance, reliability, or safety while performing PRP duties. If necessary, the competent medical authority will inform the certifying official that the person in question should be suspended or temporarily decertified from PRP status, as appropriate, without revealing that the person is a victim of sexual assault, thus preserving the Restricted Report.

(3) Non-participating victim (see § 105.3). For victims choosing either Restricted or Unrestricted Reporting, the following guidelines apply:

(i) Details regarding the incident will be limited to only those personnel who have an official need to know. The victim's decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases, including, but not limited to, commanders, DoD law enforcement officials, and personnel in the victim's chain of command. If at any time the victim who originally chose the Unrestricted Reporting option declines to participate in an investigation or prosecution, that decision should be honored in accordance with this subparagraph. However, the victim cannot change from an Unrestricted to a Restricted Report. The victim should be informed by the SARC or SAPR VA that the investigation may continue regardless of whether the victim participates.

(ii) The victim's decision not to participate in an investigation or prosecution will not affect access to SARC and SAPR VA services, medical and psychological care, or services from an SVC or VLC. These services shall be made available to all eligible sexual assault victims.

(iii) If a victim approaches a SARC, or SAPR VA, or healthcare provider and begins to make a report, but then changes his or her mind and leaves without signing the DD Form 2910 (the form where the reporting option is selected), the SARC, SAPR VA, or healthcare provider is not under any obligation or duty to inform investigators or commanders about this report and will not produce the report or disclose the communications surrounding the report. If commanders or law enforcement ask about the report, disclosures can only be made in accordance with exceptions to the MRE 514 or MRE 513 privilege, as applicable.

(4) Disclosure of confidential communications. In cases where a victim elects Restricted Reporting, the SARC, SAPR VA, and healthcare personnel may not disclose confidential communications or the SAFE and the accompanying Kit to DoD law enforcement or command authorities, either within or outside the DoD, except as provided in this part. In certain situations, information about a sexual assault may come to the commander's or DoD law enforcement official's (to include MCIO's) attention from a source independent of the Restricted Reporting avenues and an independent investigation is initiated. In these cases, a SARC, SAPR VA, and healthcare personnel are prevented from disclosing confidential communications under Restricted Reporting, unless an exception applies. An independent investigation does not, in itself, convert the Restricted Report to an Unrestricted Report. Thus, a SARC, SAPR VA, or healthcare personnel in receipt of confidential communications are prohibited from disclosure in an independent investigation. Improper disclosure of confidential communications 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.

(5) Victim confiding in another person. In establishing the Restricted Reporting option, DoD recognizes that a victim may tell someone (e.g., roommate, friend, family member) that a sexual assault has occurred before considering whether to file a Restricted or Unrestricted Report.

(i) A victim's communication with another person (e.g., roommate, friend, family member) does not, in and of itself, prevent the victim from later electing to make a Restricted Report. Restricted Reporting is confidential, not anonymous reporting. However, if the person to whom the victim confided the information (e.g., roommate, friend, family member) is in the victim's officer and or non-commissioned officer chain of command or DoD law enforcement, there can be no Restricted Report.

(ii) Communications between the victim and a person other than the SARC, SAPR VA, healthcare personnel, assigned SVC/VLC, legal assistance officer, or chaplain are not confidential and do not receive the protections of Restricted Reporting.

(6) Independent investigations. Independent investigations are not initiated by the victim. If information about a sexual assault comes to a commander's attention from a source other than a victim (victim may have elected Restricted Reporting or where no report has been made by the victim), that commander shall immediately report the matter to an MCIO and an official (independent) investigation may be initiated based on that independently acquired information.

(i) If there is an ongoing independent investigation, the sexual assault victim will no longer have the option of Restricted Reporting when:

(A) DoD law enforcement informs the SARC of the investigation, and

(B) The victim has not already elected Restricted Reporting.

(ii) The timing of filing a Restricted Report is crucial. In order to take advantage of the Restricted Reporting option, the victim must file a Restricted Report by signing a DD Form 2910 before the SARC is informed of an ongoing independent investigation of the sexual assault.

(A) If a SARC is notified of an ongoing independent investigation and the victim has not signed a DD Form 2910 electing Restricted Report, the SARC must inform the victim that the option to file a Restricted Report is no longer available. However, all communications between the victim and the victim advocate will remain privileged except for the application of an exception to Restricted Reporting

(B) If an independent investigation begins after the victim has formally elected Restricted Reporting (by signing the DD Form 2910), the independent investigation has no impact on the victim's Restricted Report and the victim's communications and SAFE Kit remain confidential, to the extent authorized by law and DoD regulations.

(7) Mandatory reporting laws and cases investigated by civilian law enforcement. To the extent possible, DoD will honor the Restricted Report; however, sexual assault victims need to be aware that the confidentiality afforded their Restricted Report is not guaranteed due to circumstances surrounding the independent investigation or the SARC, in consultation with their respective staff judge advocates, determine that disclosure of personally identifiable information of the victim or alleged perpetrator is necessary to prevent or mitigate an imminent threat to health and safety of the victim or another person.

(8) Preemption of State law to ensure confidentiality of restricted report. Pursuant to section 1565b(b)(3) of title 10, United States Code, as amended by Section 536 of Public Law 114-92, a member of the armed forces, or a dependent of a member, who is the victim of a sexual assault may elect to confidentially disclose the details of the assault to a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, or healthcare personnel as defined in DoD regulations, receive medical treatment, legal assistance or counseling, without initiating an official investigation of the allegations. Any state or local law or regulation that would requires an individual who is a Sexual Assault Response Coordinator, a Sexual Assault Victim Advocate, or individual within the definition of healthcare personnel to disclose the personally identifiable information of the adult victim or alleged perpetrator of the sexual assault to a state or local law enforcement agency shall not apply, except when reporting is necessary to prevent or mitigate a serious and imminent threat to the health and safety of the victim or another person, as determined by an authorized Department of Defense official.

(b) Initiating medical care and treatment upon receipt of report. Healthcare personnel will initiate the emergency care and treatment of sexual assault victims, notify the SARC or the SAPR VA in accordance with § 105.11, and make appropriate medical referrals for specialty care, if indicated. Upon receipt of a Restricted Report, only the SARC or the SAPR VA will be notified. There will be no report to DoD law enforcement, a supervisory official, or the victim's chain of command by the healthcare personnel, unless an exception to Restricted Reporting applies or applicable law requires other officials to be notified. Regardless of whether the victim elects Restricted or Unrestricted Reporting, confidentiality of medical information will be maintained in accordance with applicable laws and regulations.

(c) Implementing DoD 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 prevention programs. The DoD also strongly supports applicable DoD law enforcement and criminal justice procedures that enable persons to be held appropriately accountable for sexual assault offenses and criminal dispositions. To achieve the dual objectives of victim support and offender accountability, DoD preference is for Unrestricted Reporting of sexual assaults to allow for the provision of victims' services and to pursue offender accountability, as appropriate. However, Unrestricted Reporting may represent a barrier for victims to access services, when the victim desires no command or DoD law enforcement involvement. Consequently, the DoD recognizes a fundamental need to provide a confidential disclosure vehicle via the Restricted Reporting option. This section provides procedural guidance and considerations to implement the DoD dual objectives.

(1) Restricted Reporting impact. Restricted Reporting will impact investigations and the ability of the offender's commander to hold the alleged offender appropriately accountable. However, such risks shall not outweigh the overall interest in providing a Restricted Reporting option to sexual assault victims.

(2) Victim's perception of the military justice system. The DoD seeks increased reporting by victims of sexual assault. A system that is perceived as fair and treats victims with dignity and respect, and promotes privacy and confidentiality may have a positive impact in bringing victims forward to provide information about being assaulted. The Restricted Reporting option is intended to give victims additional time and increased control over the release and management of their personal information and empowers them to seek relevant information and support to make more informed decisions about participating in the criminal investigation. A victim who receives support, appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation is more likely to develop increased trust that the victim's needs are of concern to the command. As a result, this trust may eventually lead the victim to decide to pursue an investigation and convert the Restricted Report to an Unrestricted Report.

(d) Reports and commanders -

(1) Unrestricted reports to commanders. The SARC shall provide the installation commander and the immediate commander of the sexual assault victim (if a civilian victim, then the immediate commander of alleged military offender) with information regarding all Unrestricted Reports within 24 hours of an Unrestricted Report of sexual assault. This notification may be extended by the commander to 48 hours after the Unrestricted Report of the incident when there are extenuating circumstances in deployed environments. SARC and SAPR VA communications with victims are protected under the MRE 514 privilege. For Unrestricted Reports, the 8-day incident report will be filed in accordance with section 1743 of Public Law 113-66.

(2) Restricted reports to commanders. For the purposes of public safety and command responsibility, in the event of a Restricted Report, the SARC shall report non-PII concerning sexual assault incidents (without information that could reasonably lead to personal identification of the victim or the alleged assailant (see exception in § 105.8(e)(2)(ii)) only to the installation commander within 24 hours of the report. This notification may be extended by the commander to 48 hours after the Restricted Report of the incident when there are extenuating circumstances in deployed environments. To ensure oversight of victim services for Restricted Report cases, the SARC will also confirm in her or his report that the victim has been offered SAPR advocacy services, an explanation of the notifications in the DD Form 2910; medical and mental healthcare and informed of his or her eligibility for an SVC/VLC. The 8-day incident report is not required for Restricted Reports in accordance with section 1743 of Public Law 113-66. SARC and SAPR VA communications with victims are protected by the Restricted Reporting option and the MRE 514 privilege, U.S. Department of Defense, Manual for Courts-Martial, United States.

(i) Even if the victim chooses not to convert to an Unrestricted Report, or provide PII, the non-PII information provided by the SARC makes the installation commander aware that a sexual assault incident was reported to have occurred. Restricted Reporting gives the installation commander a clearer picture of the reported sexual assaults within the command. The installation commander can then use the information to enhance preventive measures, to enhance the education and training of the command's personnel, and to scrutinize more closely the organization's climate and culture for contributing factors.

(ii) Neither the installation commander nor DoD law enforcement may use the information from a Restricted Report for investigative purposes or in a manner that is likely to discover, disclose, or reveal the identities of the victims unless an exception to Restricted Reporting applies. Improper disclosure of Restricted Reporting information may result in disciplinary action or other adverse personnel or administrative actions.

(e) Exceptions to Restricted Reporting and disclosures.

(1) The SARC will evaluate the confidential information provided under the Restricted Report to determine whether an exception applies.

(i) The SARC shall disclose the otherwise protected confidential information only after consultation with the SJA of the installation commander, supporting judge advocate or other legal advisor concerned, who shall advise the SARC whether an exception to Restricted Reporting applies. In addition, the SJA, supporting judge advocate or other legal advisor concerned will analyze the impact of MRE 514 on the communications.

(ii) When there is uncertainty or disagreement on whether an exception to Restricted Reporting applies, the matter shall be brought to the attention of the installation commander for decision without identifying the victim (using non-PII information). Improper disclosure of confidential communications under Restricted Reporting, improper release of medical information, and other violations of this guidance are prohibited and may result in discipline pursuant to the UCMJ or State statute, loss of privileges, loss of certification or credentialing, or other adverse personnel or administrative actions.

(2) The following exceptions to the prohibition against disclosures of Restricted Reporting authorize a disclosure of a Restricted Report only when the SJA consultation described as provided in paragraphs (f) and (g) of this section has occurred and only if one or more of the following conditions apply:

(i) Authorized by the victim in writing.

(ii) Disclosure of the personally identifiable information of the military victim or their adult dependent is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person. For example, multiple reports involving the same alleged offender (repeat offender) could meet this criterion. See similar safety and security exceptions in MRE 514, U.S. Department of Defense, Manual for Courts-Martial, United States.

(iii) Required for fitness for duty or disability determinations. This disclosure is limited to only the information necessary to process duty or disability determinations for Service members. Disclosure of a Restricted Report under these circumstances does not change the nature of the victim's Restricted Report, nor does it create an obligation for reporting to law enforcement or command for investigation.

(iv) Required for the supervision of coordination of direct victim healthcare or services. The SARC, SAPR VA, or healthcare personnel can disclose specifically requested information to those individuals with an official need to know, or as required by law or regulation.

(v) Ordered by a military official (e.g., a duly authorized subpoena in a UCMJ case), Federal or State judge, or as required by a Federal or State statute or applicable U.S. international agreement. The SARC, SAPR VA, and healthcare personnel will consult with the installation commander's servicing legal office, in the same manner as other recipients of privileged information, to determine if the exception criteria apply and whether a duty to disclose the otherwise protected information is present. Until those determinations are made, only non-PII shall be disclosed.

(3) Healthcare personnel may also convey to the victim's unit commander any possible adverse duty impact related to the victim's medical condition and prognosis in accordance with DoD Directive 5400.11 and DoD 6025.18-R However, such circumstances do not otherwise warrant a Restricted Reporting exception to policy. Therefore, the confidential communication related to the sexual assault may not be disclosed. Improper disclosure of confidential communications, improper release of medical information, and other violations of this part and 32 CFR part 103 are prohibited and may result in discipline pursuant to the UCMJ or another Federal or State statute, loss of privileges, or other adverse personnel or administrative actions.

(4) The SARC or SAPR VA shall inform the victim when a disclosure in accordance with the exceptions in this section is made. Whenever possible, the victim should be notified in advance of the disclosure.

(5) If a SARC, SAPR VA, or healthcare personnel make an unauthorized disclosure of a confidential communication, that person is subject to disciplinary action. Unauthorized disclosure has no impact on the status of the Restricted Report. All Restricted Reporting information is still confidential and protected, to the extent authorized by law and this part. However, unauthorized or inadvertent disclosures made to a commander or law enforcement shall result in notification to the MCIO.

(f) Actionable rights. Restricted Reporting does not create any actionable rights for the victim or alleged offender or constitute a grant of immunity for any actionable conduct by the alleged offender or the victim.

(g) Resources for victims to report retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request an expedited/safety transfer or military protective order (MPO)/civilian protective order (CPO). SARCs and SAPR VAs must inform victims of the resources available to report instances of retaliation, reprisal, ostracism, maltreatment, sexual harassment, or to request a transfer or MPO. If the allegation is criminal in nature and the victim filed an Unrestricted Report, the crime should be immediately reported to an MCIO, even if the crime is not something normally reported to an MCIO (e.g., victim's personal vehicle was defaced). Victims can seek assistance on how to report allegations by requesting assistance from:

(1) A SARC or SAPR VA or SVC/VLC.

(2) A SARC on a different installation, which can be facilitated by the Safe Helpline.

(3) Their immediate commander.

(4) A commander outside their chain of command.

(5) Service personnel to invoke their Service-specific reporting procedures regarding such allegations in accordance with AD 2014/AFI 36-2909/SECNAVINST 5370.7D.

(6) Service Military Equal Opportunity (MEO) representative to file a complaint of sexual harassment.

(7) A G/FO if the retaliation, reprisal, ostracism, or maltreatment involves the administrative separation of victims within 1 year of the final disposition of their sexual assault case. A victim may request that the G/FO review the separation in accordance with DoDI 1332.14 (enlisted personnel) or DoDI 1332.30 (commissioned officers).

(8) A G/FO if the victim believes that there has been an impact on their military career because they reported a sexual assault or sought mental health treatment for sexual assault that the victim believes is associated with the sexual assault. The victim may discuss the impact with the G/FO.

(9) An SVC or VLC, trial counsel and VWAP, or a legal assistance attorney to facilitate reporting with a SARC or SAPR VA.

(10) Service personnel to file a complaint of wrongs in accordance with Article 138 of the UCMJ (section 938 of title 10 U.S.C.)

(11) IG DoD, invoking whistle-blower protections in accordance with DoDD 7050.06.

(12) Commander or SARC to request an Expedited Transfer.

(13) Commander or SARC to request a safety transfer or an MPO and/or CPO, if the victim is in fear for her or his safety.

(14) The MCIO, if the allegation is of an act that is criminal in nature and the victim filed an Unrestricted Report. The allegation should immediately be reported to an MCIO.

[78 FR 21718, Apr. 11, 2013, as amended at 81 FR 66438, Sept. 27, 2016]

Footnotes - 105.8

^[5] Available: http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf.