2013-07804. Sexual Assault Prevention and Response (SAPR) Program Procedures

AGENCY:

Department of Defense (DoD).

ACTION:

Interim final rule.

SUMMARY:

This rule implements policy, assigns responsibilities, and provides guidance and procedures for the SAPR Program; establishes the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; establishes the multidisciplinary Case Management Group (CMG) and provides guidance on how to handle sexual assault; establishes SAPR minimum program standards, SAPR training requirements, and SAPR requirements for the DoD Annual Report on Sexual Assault in the Military. The Department of Defense Sexual Assault Prevention and Response (SAPR) program continues to evolve, and the Department is committed to incorporating best practices and Congressional requirements to ensure that sexual assault victims receive the services they need. As part of this commitment and in addition to the Interim Final Rule, the Department is exploring the feasibility and advisability of extending the Restricted Reporting option to DoD civilians and contractors serving overseas.

DATES:

This rule is effective April 11, 2013. Comments must be received by June 10, 2013.

ADDRESSES:

You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Federal Docket Management System Office, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.

Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Diana Rangoussis, Senior Policy Advisor, DoD Sexual Assault Prevention and Response Office (SAPRO), [phone].

SUPPLEMENTARY INFORMATION:

This rule is being published as an interim final rule to:

(a) Incorporate all applicable Congressional mandates and all applicable recommendations from the Inspector General of the Department of Defense (IG, DoD), Government Accountability Office (GAO), and Defense Task Force on Sexual Assault in the Military Services (DTFSAMS), to include the Defense Sexual Assault Incident Database (DSAID);

(b) Incorporate the NDAA requirement for expedited transfers of military service members who file Unrestricted Reports of sexual assault;

(c) Incorporate the NDAA requirement for document retention in cases of Restricted and Unrestricted Reports of sexual assault;

(d) Incorporate the NDAA requirement for a DoD-wide certification program with a national accreditor to ensure all sexual assault victims are offered the assistance of a certified sexual assault response coordinator (SARC) or SAPR victim advocate (VA);

(e) Incorporate the NDAA requirement for updated SAPR training standards for Service members, and in addition containing specific standards for: accessions, annual, professional military education and leadership development training, pre- and post-deployment, pre-command, General and Field Officers and SES, military recruiters, civilians who supervise military, and responders (to include legal assistance attorneys) training;

(f) Training on the new military rule of evidence (MRE) 514 that established the victim advocate privilege in UCMJ cases;

(g) Establish the SAFE Helpline is established as the sole DoD hotline for crisis intervention. DoD sexual assault advocate certification program is mandated pursuant to the mandate in NDAA FY 12;

(h) Establishes requirements for a sexual assault victim safety assessment and the execution of a high-risk team to monitor cases where the sexual assault victim's life and safety may be in jeopardy.

Executive Summary

I. Purpose of the Regulatory Action

a. The Need for the Regulatory Action and How the Action Will Meet That Need

This rule:

(1) Incorporates all applicable Congressional mandates from 10 U.S.C. 113; 10 U.S.C. chapter 47; and Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383 and 112-81; and all applicable recommendations from the IG, DoD; GAO; DoD Task Force on Care for Victims of Sexual Assault; and DTFSAMS;

(2) Establishes the creation, implementation, maintenance, and function of DSAID, an integrated database that will meet Congressional reporting requirements, support Service SAPR program management, and inform DoD SAPRO oversight activities;

(3) Increases the scope of applicability of this part by expanding the categories of persons covered by this part to include:

(i) National Guard (NG) and Reserve Component members who are sexually assaulted when performing active service, as defined in 10 U.S.C. 101(d)(3), and inactive duty training. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve Component members will be eligible to receive limited SAPR support services from a Sexual Assault Response Coordinator (SARC) and a SAPR Victim Advocate (VA) and are eligible to file a Restricted Report.

(ii) Military dependents 18 years of age and older who are eligible for treatment in the military healthcare system (MHS), at installations in the continental United States (CONUS) and outside the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner.

(iii) Adult military dependents may file unrestricted or restricted reports of sexual assault.

(iv) The Family Advocacy Program (FAP), consistent with DoDD 6400.1 ^[1] and DoD Instruction (DoDI) 6400.06,^[2] covers adult military dependent sexual assault victims who are assaulted by a spouse or intimate partner and military dependent sexual assault victims who are 17 years of age and younger.)

(4) The following non-military individuals who are victims of sexual assault are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE (http://www.tricare.mil) beneficiary of the military health system to receive treatment in a military medical treatment facility (MTF) at no cost to them. They are only eligible to file an Unrestricted Report. They will also be offered the limited SAPR services to be defined as the assistance of a SARC and SAPR VA while undergoing emergency care OCONUS. These limited medical and SAPR services shall be provided to:

(i) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option.

(ii) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41 ^[3] as applicable.

(5) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning are eligible to receive SAPR services under either reporting option. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.

b. Succinct Statement of Legal Authority for the Regulatory Action

10 U.S.C. 113; 10 U.S.C. chapter 47 (also known and hereafter referred to as “The Uniform Code of Military Justice”); and Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383 and 112-81.

II. Summary of the Major Provisions of the Regulatory Action

This rule:

(1) Codifies the Expedited Transfer policy which provides sexual assault victims who report their assaults the opportunity to transfer from their installation.

(2) Codifies the Document Retention policy which requires the retention of certain sexual assault records in reported cases for 50 years, and requires the retention for at least 5 years in cases of restricted reports (no command or law enforcement notice). But at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the Department of Defense Form (DD Form) 2910 and DD Form 2911 filed in connection with the Restricted Report be retained for 50 years.

(3) Details for the Congressional reporting requirements for the annual sexual assault in the military services report and the Military Service Academies report are set out.

(4) Provides detailed procedures for the DSAID database.

(5) Establishes the SAFE Helpline as the sole DoD hotline for crisis intervention.

(6) Establishes the DoD sexual assault advocate certification program, pursuant to the mandate in NDAA FY 12.

(7) Revises training requirements for all levels of training and all military personnel. Specific training standards will be codified for first responders to include SARCs, SAPR VAs, medical personnel, commanders, investigators, chaplains, prosecutors, and even legal assistance attorneys.

(8) Mandates training on the new Victim Advocate Privilege found in Military Rule of Evidence 514.

(9) Requires the execution of a high-risk team to monitor cases where the sexual assault victim's life and safety may be in jeopardy.

III. Costs and Benefits

The preliminary estimate of the anticipated cost associated with this rule for the current fiscal year is approximately $15 million. Additionally, each of the Military Services establishes its own SAPR budget for the programmatic costs arising from the implementation of the training, prevention, reporting, response, and oversight requirements established by this rule.

The anticipated benefits associated with this rule include:

(1) A complete SAPR Policy consisting of this part and 32 CFR part 103, to include comprehensive SAPR procedures to implement the DoD policy on prevention and response to sexual assaults involving members of the U.S. Armed Forces.

(2) Guidance and procedures with which the DoD may establish a culture free of sexual assault, through an environment of prevention, education and training, response capability, victim support, reporting procedures, and appropriate accountability that enhances the safety and well being of all persons covered by this part and 32 CFR part 103.

(3) A 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.

(4) A requirement that medical care and SAPR services are gender-responsive, culturally competent, and recovery-oriented.

(5) Command sexual assault awareness and prevention programs and DoD law enforcement and criminal justice procedures that enable persons to be held appropriately accountable for their actions, shall be supported by all commanders.

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

(7) A 24 hour, 7 day per week sexual assault response capability for all locations, including deployed areas, shall be established for persons covered in this part. An immediate, trained sexual assault response capability shall be available for each report of sexual assault in all locations, including in deployed locations.

(8) Sexual Assault Response Coordinators (SARC), SAPR Victim Advocates (VA), and other responders will assist sexual assault victims regardless of Service affiliation.

(9) Service member and adult military dependent victims of sexual assault shall receive timely access to comprehensive medical and psychological treatment, including emergency care treatment and services, as described in this part and 32 CFR part 103.

(10) Sexual assault victims shall be given priority, and treated as emergency cases. Emergency care shall consist of emergency medical care and the offer of a SAFE. The victim shall be advised that even if a SAFE is declined the victim shall be encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy.

(11) Enlistment or commissioning of persons in the Military Services shall be prohibited and no waivers are allowed when the person has a qualifying conviction for a crime of sexual assault or is required to be registered as a sex offender.

(12) Two separate document retention schedules for records of Service members who report that they are victims of sexual assault, based on whether the Service member filed a Restricted or Unrestricted Report as defined 32 CFR part 103. The record retention system for Restricted Reports shall protect the Service member's desire for confidentiality. Restricted Report cases direct that DD Forms 2910 and DD Form 2911 be retained for at least 5 years, but at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.

Unrestricted Report cases direct that DD Forms 2910 and 2911 be retained for 50 years.

(13) Expedited reporting of threats and expedited transfer policies for victims making Unrestricted Reports and who request a transfer.

(14) Military Service members who file Unrestricted and Restricted Reports of sexual assault shall be protected from reprisal, or threat of reprisal, for filing a report.

(15) Expanding the applicability of SAPR services to military dependents 18 years and older who have been sexually assaulted and giving the option of both reporting options: Unrestricted or Restricted Reporting.

(16) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning are eligible to receive SAPR services under either reporting option. The DoD shall provide support to an active duty Military Service member regardless of when or where the sexual assault took place.

(17) A requirement to establish a DoD-wide certification program with a national accreditor to ensure all sexual assault victims are offered the assistance of a SARC or SAPR VA who has obtained this certification.

(18) Training standards for legal assistance attorneys.

(19) Training standards to train the Executive Order 13593, “2011 Amendments to the Manual for Courts-martial, United States,” which established a new military rule of evidence (MRE) 514 that established the victim advocate privilege in UCMJ cases.

(20) Implementing training standards that cover general SAPR training for Service members, and contain specific standards for: accessions, annual, professional military education and leadership development training, pre- and post-deployment, pre-command, General and Field Officers and SES, military recruiters, civilians who supervise military, and responder trainings.

Regulatory Procedures

Executive Order 12866, “Regulatory Planning and Review”

It has been determined that this rule does not:

(a) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

(b) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; or

(c) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof. However, it has been determined that this rule does raise novel legal or policy issues arising out of legal mandates, and the principles set forth in this Executive Order. This rule establishes the legal mandate from the National Defense Authorization Act to require all SARC and SAPR VAs that provide a response to be certified. Training standards for Executive Order 13593, “2011 Amendments to the Manual for Courts-martial, United States,” which establishes a new military rule of evidence that established the victim advocate privilege in UCMJ cases.

Sec. 202, Public Law 104-4, “Unfunded Mandates Reform Act”

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule provides guidance and procedures for the DoD SAPR Program only.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

Section 105.15 of this interim final rule contains information collection requirements. DoD has submitted the following proposal to the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), which has been assigned OMB Control Number 0704-0482. The System of Records Notice for the rule is located at http://www.sapr.mil/​media/​pdf/​dsaid/​DSAID_​Federal_​Register_​SORN.pdf. The Privacy Act Information for this rule is located at http://www.whs.mil/​EITSD/​documents/​DSAID-PIA.pdf.

Executive Order 13132, “Federalism”

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(a) The States;

(b) The relationship between the National Government and the States; or

(c) The distribution of power and responsibilities among the various levels of Government.

List of Subjects in 32 CFR Part 105

• Military personnel, crime, health, reporting and recordkeeping requirements

Accordingly, 32 CFR part 105 is added to read as follows:

PART 105—SEXUAL ASSAULT PREVENTION AND RESPONSE PROGRAM PROCEDURES

105.1

Purpose.

105.2

Applicability.

105.3

Definitions.

105.4

Policy.

105.5

Responsibilities.

105.6

Procedures.

105.7

Oversight of the SAPR program.

105.8

Reporting options and Sexual Assault Reporting Procedures.

105.9

Commander and management procedures.

105.10

SARC and SAPR VA procedures.

105.11

Healthcare provider procedures.

105.12

SAFE Kit collection and preservation.

105.13

Case management for Unrestricted Reports of sexual assault.

105.14

Training requirements for DoD personnel.

105.15

Defense Sexual Assault Incident Database (DSAID).

105.16

Sexual assault annual and quarterly reporting requirements.

105.17

Sexual assault offense—investigation disposition descriptions.

105.18

Information collection requirements.

Authority: 10 U.S.C. 113; 10 U.S.C. chapter 47; and Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383, and 112-81.

§ 105.1

Purpose

This part, in accordance with the authority in DoDD 5124.02 ^[1] and 32 CFR part 103:

(a) Establishes policy and implements 32 CFR part 103, assigns responsibilities, and provides guidance and procedures for the SAPR Program (see 32 CFR 103.3), can be found at www.dtic.mil/​whs/​directives/​corres/​pdf/​649501p.pdf;

(b) Establishes the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; can be found at http://www.sapr.mil/​index.php/​toolkit;

(c) Establishes the multidisciplinary Case Management Group (CMG) (see § 105.3) and provides guidance on how to handle sexual assault;

(d) Establishes Sexual Assault Prevention and Response (SAPR) minimum program standards, SAPR training requirements, and SAPR requirements for the DoD Annual Report on Sexual Assault in the Military consistent with the DoD Task Force Report on Care for Victims of Sexual Assault ^[2] and pursuant to DoDD 5124.02 and 32 CFR part 103, 10 U.S.C. 113, 10 U.S.C. chapter 47 (also known and hereafter referred to as the “UCMJ”), and Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383, and 112-81; and

(e) Incorporates DTM 11-063, “Expedited Transfer of Military Service Members Who File Unrestricted Reports of Sexual Assault,” December 16, 2011, can be found at http://www.sapr.mil/​media/​pdf/​policy/​DTM-11-063.pdf and DTM 11-062, “Document Retention for Restricted and Unrestricted Reports of Sexual Assault,” December 16, 2011, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​DTM-11-062.pdf.

(f) Implements DoD policy and assigns responsibilities for the SAPR Program on prevention, response, and oversight to sexual assault according to the policies and guidance in:

(1) DoDD 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R)),” June 23, 2008, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​512402p.pdf;​;

(2) 32 CFR part 103;

(3) Under Secretary of Defense for Personnel and Readiness, “Task Force Report on Care for Victims of Sexual Assault,” April 2004, can be found at http://www.sapr.mil/​media/​pdf/​research/​Task-Force-Report-for-Care-of-Victims-of-SA-2004.pdf;

(4) Sections 101(d)(3), 113, 504, 4331, chapter 47, and chapter 80 of title 10, U.S.C.;

(5) Public Law 106-65, “National Defense Authorization Act for Fiscal Year 2000,” October 5, 1999;

(6) Public Law 108-375, “Ronald Reagan National Defense Authorization Act for Fiscal Year 2005,” October 28, 2004;

(7) Public Law 109-163, “National Defense Authorization Act for Fiscal Year 2006,” January 6, 2006;

(8) Public Law 109-364, “John Warner National Defense Authorization Act for Fiscal Year 2007,” October 17, 2006;

(9) Sections 561, 562, and 563 of Public Law 110-417, “Duncan Hunter National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008;

(10) Public Law 111-84, “National Defense Authorization Act for Fiscal Year 2010,” October 28, 2009;

(11) Public Law 111-383, “Ike Skelton National Defense Authorization Act for Fiscal Year 2011,” January 7, 2011;

(12) Section 585 and 586 of Public Law 112-81, “National Defense Authorization Act for Fiscal Year 2012,” December 16, 2011;

(13) DTM 11-063, “Expedited Transfer of Military Service Members Who File Unrestricted Reports of Sexual Assault,” December 16, 2011 (hereby cancelled), can be found at http://www.sapr.mil/​media/​pdf/​policy/​DTM-11-063.pdf;

(14) DTM 11-062, “Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault,” December 16, 2011, can be found at http://www.sapr.mil/​media/​pdf/​policy/​DTM-11-062.pdf;

(15) DoDD 6400.1, “Family Advocacy Program (FAP),” August 23, 2004, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​640001p.pdf;

(16) DoDI 6400.06, “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel,” August 21, 2007, as amended, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​640006p.pdf;

(17) DoDI 3020.41, “Operational Contract Support (OCS),” December 20, 2011, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​302041p.pdf;

(18) U.S. Department of Defense, “Manual for Courts-Martial, United States”;

(19) DoDI 5505.18, “Investigation of Adult Sexual Assault in the Department of Defense,” January 25, 2013, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​550518p.pdf;

(20) DoDI 5545.02, “DoD Policy for Congressional Authorization and Appropriations Reporting Requirements,” December 19, 2008, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​554502p.pdf;

(21) DTM 12-004, “DoD Internal Information Collections,” April 24, 2012, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​DTM-12-004.pdf;

(21) DoD 8910.1-M, “Department of Defense Procedures for Management of Information Requirements,” June 30, 1998, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​891001m.pdf;

(23) U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” current version, can be found at http://www.ncjrs.gov/​pdffiles1/​ovw/​206554.pdf;

(24) DoDI 1030.2, “Victim and Witness Assistance Procedures,” June 4, 2004, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​103002p.pdf;

(25) DoDD 7050.06, “Military Whistleblower Protection,” July 23, 2007, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​705006p.pdf;

(26) Section 102 of title 32, U.S.C.;

(27) Section 8(c) of Public Law 100-504, “The Inspector General Act of 1978,” as amended;

(28) DoD 6025.18-R, “DoD Health Information Privacy Regulation,” January 24, 2003, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​602518r.pdf;

(29) Executive Order 13593, “2011 Amendments to the Manual for Courts-Martial, United States,” December 13, 2011, can be found at http://www.gpo.gov/​fdsys/​pkg/​FR-2011-12-16/​pdf/​X11-11216.pdf;

(30) DoDD 5400.11, “DoD Privacy Program,” May 8, 2007, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​540011p.pdf;

(31) Public Law 104-191, “Health Insurance Portability and Accountability Act of 1996,” August 21, 1996;

(32) Section 552a of title 5, U.S.C.;

(33) DoDD 1030.01, “Victim and Witness Assistance,” April 13, 2004, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​103001p.pdf;

(34) DoDI 1241.2, “Reserve Component Incapacitation System Management,” May 30, 2001, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​124102p.pdf;

(35) Section 1561a of Public Law 107-311, “Armed Forces Domestic Security Act,” December 2, 2002;

(36) Secretary of Defense Memorandum, “Withholding Initial Disposition Authority Under the Uniform Code of Military Justice in Certain Sexual Assault Cases,” April 20, 2012, can be found at http://www.dod.gov/​dodgc/​images/​withhold_​authority.pdf;

(37) Under Secretary of Defense for Personnel and Readiness Memorandum, “Legal Assistance for Victims of Crime,” October 17, 2011, can be found at http://www.sapr.mil/​index.php/​law-and-dod-policies/​directives-and-instructions; and

(38) DoD 4165.66-M, “Base Redevelopment and Realignment Manual,” March 1, 2006, can be found at http://www.dtic.mil/​whs/​directives/​corres/​pdf/​416566m.pdf.

§ 105.2

Applicability.

This part applies to:

(a) Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the IG, DoD, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (hereafter referred to collectively as the “DoDComponents”).

(b) NG and Reserve Component members who are sexually assaulted when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve Component members will be eligible to receive limited SAPR support services from a SARC and a SAPR VA and are eligible to file a Restricted or Unrestricted Report.

(c) Military dependents 18 years of age and older who are eligible for treatment in the MHS, at installations CONUS and OCONUS, and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner.

(1) Adult military dependents may file unrestricted or restricted reports of sexual assault.

(2) The FAP, consistent with DoDD 6400.1 and DoDI 6400.06, covers adult military dependent sexual assault victims who are assaulted by a spouse or intimate partner and military dependent sexual assault victims who are 17 years of age and younger. The installation SARC and the installation family advocacy program (FAP) and domestic violence intervention and prevention staff shall direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.

(d) The following non-military individuals who are victims of sexual assault are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE (http://www.tricare.mil) beneficiary of the military health system to receive treatment in a military MTF at no cost to them. They are only eligible to file an Unrestricted Report. They will also be offered the limited SAPR services to be defined as the assistance of a SARC and SAPR VA while undergoing emergency care OCONUS. These limited medical and SAPR services shall be provided to:

(1) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option.

(2) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41 as applicable.

(e) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning are eligible to receive SAPR services (see § 105.3) under either reporting option. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.

§ 105.3

Definitions.

Unless otherwise noted, these terms and their definitions are for the purpose of this part. Refer to 32 CFR 103.3 for terms not defined in this part.

(a) Accessions training. Training that a Service member receives upon initial entry into Military Service through basic military training.

(b) Certification. Refers to the process by which the Department credentials SARCs and SAPR VAs, assesses the effectiveness of sexual assault advocacy capabilities using a competencies framework, and evaluates and performs oversight over SARC and SAPR VA training. The certification criteria is established by the Department in consultation with subject-matter experts.

(c) Case Management Group (CMG). A multi-disciplinary group that meets monthly to review individual cases of Unrestricted Reports of sexual assault. The group facilitates monthly victim updates and directs system coordination, accountability, and victim access to quality services. At a minimum, each group shall consist of the following additional military or civilian professionals who are involved and working on a specific case: SARC, SAPR VA, military criminal investigator, DoD law enforcement, healthcare provider and mental health and counseling services, chaplain, command legal representative or staff judge advocate (SJA), and victim's commander.

(d) Collateral misconduct. Victim misconduct that might be in time, place, or circumstance associated with the victim's sexual assault incident. Collateral misconduct by the victim of a sexual assault is one of the most significant barriers to reporting assault because of the victim's fear of punishment. Some reported sexual assaults involve circumstances where the victim may have engaged in some form of misconduct (e.g., underage drinking or other related alcohol offenses, adultery, fraternization, or other violations of certain regulations or orders).

(e) Confidential communications. Defined in 32 CFR part 103.

(f) Consent. Defined in 32 CFR part 103.

(g) Credible information. Information that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to presume that the fact or facts in question are true.

(h) Credible report. Either a written or verbal report made in support of an expedited transfer that is determined to have credible information.

(i) Crisis intervention. Defined in 32 CFR part 103.

(j) Culturally-competent care. Defined in 32 CFR part 103.

(k) Defense Sexual Assault Incident Database (DSAID). Defined in 32 CFR part 103.

(l) Designated activity. The agency that processes permanent change of station (PCS) or permanent change of assignment (PCA) for expedited transfers.

(1) Air Force: Air Force Personnel Center.

(2) Army: Human Resources Command for inter-installation transfers and the installation personnel center for intra-installation transfers.

(3) Navy: Bureau of Naval Personnel.

(4) U.S. Marine Corps: the order writing section of Headquarters Marine Corps.

(5) Air and Army NG: the National Guard Bureau (NGB) or the Joint Forces Headquarters-State for the State involved.

(m) DoD Safe Helpline. A crisis support service for victims of sexual assault in the DoD. The DoD Safe Helpline is available 24/7 worldwide with “click, call, or text” user options for anonymous and confidential support. The DoD Safe Helpline can be accessed by logging on to www.safehelpline.org or by calling 1-877-995-5247. The DoD Safe Helpline does not replace local base and installation SARC or SAPR VA contact information.

(n) Emergency. Defined in 32 CFR part 103.

(o) Emergency care. Defined in 32 CFR part 103.

(p) Executive agent. The Head of a DoD Component to whom the Secretary of Defense or the Deputy Secretary of Defense has assigned specific responsibilities, functions, and authorities to provide defined levels of support for operational missions, or administrative or other designated activities that involve two or more of the DoD Components.

(q) Final disposition. Actions taken to resolve the reported incident, document case outcome, and address the misconduct by the alleged perpetrator, as appropriate. It includes, but is not limited to, military justice proceedings, non-judicial punishment, or administrative actions, including separation actions taken in response to the offense, whichever is the most serious action taken.

(r) Gender-responsive care. Defined in 32 CFR part 103.

(s) Healthcare personnel. Persons assisting or otherwise supporting healthcare providers in providing healthcare services (e.g., administrative personnel assigned to a military MTF). Includes all healthcare providers.

(t) Healthcare provider. Those individuals who are employed or assigned as healthcare professionals, or are credentialed to provide healthcare services at a MTF, or who provide such care at a deployed location or otherwise in an official capacity. This also includes military personnel, DoD civilian employees, and DoD contractors who provide healthcare at an occupational health clinic for DoD civilian employees or DoD contractor personnel. Healthcare providers may include, but are not limited to:

(1) Licensed physicians practicing in the MHS with clinical privileges in obstetrics and gynecology, emergency medicine, family practice, internal medicine, pediatrics, urology, general medical officer, undersea medical officer, flight surgeon, or those having clinical privileges to perform pelvic examinations.

(2) Licensed advanced practice registered nurses practicing in the MHS with clinical privileges in adult health, family health, midwifery, women's health, or those having clinical privileges to perform pelvic examinations.

(3) Licensed physician assistants practicing in the MHS with clinical privileges in adult, family, women's health, or those having clinical privileges to perform pelvic examinations.

(4) Licensed registered nurses practicing in the MHS who meet the requirements for performing a SAFE as determined by the local privileging authority. This additional capability shall be noted as a competency, not as a credential or privilege.

(5) A psychologist, social worker or psychotherapist licensed and privileged to provide mental health are or other counseling services in a DoD or DoD-sponsored facility.

(u) Hospital facilities (Level 3). Minimum operational functions required for a Level 3 hospital include: command, control, and communications; patient administration; nutritional care; supply and services; triage; emergency medical treatment; preoperative care; orthopedics; general surgery; operating rooms and central materiel and supply services; anesthesia, nursing services (to include intensive and intermediate care wards); pharmacy; clinical laboratory and blood banking; radiology services; and hospital ministry team services.

(v) Installation. A base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the DoD, including any leased facility. It does not include any facility used primarily for civil works, rivers and harbors projects, flood control, or other projects not under the primary jurisdiction or control of the DoD.

(w) Installation commander. Commander of a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the DoD, including any leased facility. It does not include any facility used primarily for civil works, rivers and harbors projects, flood control, or other projects not under the primary jurisdiction or control of the DoD.

(x) Law enforcement. Includes all DoD law enforcement units, security forces, and Military Criminal Investigative Organizations (MCIO).

(y) MCIOs. The U.S. Army Criminal Investigation Command, Naval Criminal Investigative Service, and Air Force Office of Special Investigations.

(z) Medical care. Includes physical and psychological medical services.

(aa) Military Services. The term, as used in the SAPR Program, includes Army, Air Force, Navy, Marines, Reserve Components, and their respective Military Academies.

(bb) Non-identifiable information. Defined in 32 CFR part 103.

(cc) Non-participating victim. Victim choosing not to participate in the military justice system.

(dd) Official investigative process. Defined in 32 CFR part 103.

(ee) Personal identifiable information. Defined in 32 CFR part 103.

(ff) Qualifying conviction. Defined in 32 CFR part 103.

(gg) Recovery-oriented care. Defined in 32 CFR part 103.

(hh) Reprisal. Taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, or any other act of retaliation, against a Service member for making, preparing, or receiving a communication.

(ii) Responders. Includes first responders, who are generally composed of personnel in the following disciplines or positions: SARCs, SAPR VAs, healthcare personnel, law enforcement, and MCIOs. Other responders are judge advocates, chaplains, and commanders, but they are usually not first responders.

(jj) Respond, response, or response capability. All locations, including deployed areas, have a 24 hour, 7 day per week sexual assault response capability. The SARC shall be notified, respond or direct a SAPR VA to respond, assign a SAPR VA, and offer the victim healthcare treatment and a SAFE. In geographic locations where there is no SARC onsite, the on-call SAPR VA shall respond, offer the victim healthcare treatment and a SAFE, and immediately notify the SARC of the sexual assault. The initial response is generally composed of personnel in the following disciplines or positions: SARCs, SAPR VAs, healthcare personnel, law enforcement, and MCIOs. Other responders are judge advocates, chaplains, and commanders. When victims geographically detached from a military installation, the SARC or SAPR VA will refer to local civilian providers or the DoD Safe Helpline for resources.

(kk) Restricted reporting. Reporting option that allows sexual assault victims to confidentially disclose the assault to specified individuals (i.e., SARC, SAPR VA, or healthcare personnel), and receive medical treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA, without triggering an investigation. The victim's report provided 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 command to initiate the official investigative process unless the victim consents or an established exception applies. The Restricted Reporting Program applies to Service members and their military dependents 18 years of age and older. Additional persons who may be entitled to Restricted Reporting are NG and Reserve Component members. DoD civilians and contractors, at this time, are only eligible to file an Unrestricted Report. Only a SARC, SAPR VA, or healthcare personnel may receive a Restricted Report, previously referred to as Confidential Reporting.

(ll) Re-victimization. A pattern wherein the victim of abuse or crime has a statistically higher tendency to be victimized again, either shortly thereafter or much later in adulthood in the case of abuse as a child. This latter pattern is particularly notable in cases of sexual abuse.

(mm) SAFE Kit. Defined in 32 CFR part 103.

(nn) SAPR Integrated Product Team (IPT). A team of individuals that advises the Under Secretary of Defense (USD) for Personnel and Readiness (P&R) and the Secretary of Defense on policies for sexual assault issues involving persons covered by this part. The SAPR IPT serves as the implementation and oversight arm of the SAPR Program. It coordinates policy and reviews the DoD's SAPR policies and programs consistent with this part and 32 CFR part 103 and monitors the progress of program elements. The SAPR IPT is chaired by the Director, SAPRO.

(oo) SAPR Program. Defined in 32 CFR part 103.

(pp) SAPR services. Services provided by a SARC and SAPR VA.

(qq) SAPR VA. Defined in 32 CFR part 103.

(rr) SAPRO. Defined in 32 CFR part 103.

(ss) SARC. Defined in 32 CFR part 103.

(tt) Secondary victimization. The re-traumatization of the sexual assault, abuse, or rape victim. It is an indirect result of assault that occurs through the responses of individuals and institutions to the victim. The types of secondary victimization include victim blaming, inappropriate behavior or language by medical personnel and by other organizations with access to the victim post assault.

(uu) Service member. Defined in 32 CFR part 103.

(vv) Sexual assault. Intentional sexual contact characterized by the use of force, threats, intimidation, or abuse of authority or when the victim does not or cannot consent. As used in this part, the term includes a broad category of sexual offenses consisting of the following specific UCMJ offenses: rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy (forced oral or anal sex), or attempts to commit these offenses.

(ww) Trauma informed care. An approach to engage people with histories of trauma that recognizes the presence of trauma symptoms and acknowledges the role that trauma has played in their lives. Trauma-informed services are based on an understanding of the vulnerabilities or triggers of trauma survivors that traditional service delivery approaches may exacerbate, so these services and programs can be more supportive and avoid re-traumatization.

(xx) Unrestricted reporting. Defined in 32 CFR part 103.

(yy) Victim Witness Assistance Program (VWAP). Provides guidance in accordance with DoD 8910.1-M ^[3] for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement. Particular attention is paid to victims of serious and violent crime, including child abuse, domestic violence and sexual misconduct.

(zz) Victim. Defined in 32 CFR part 103.

(aaa) Working Integrated Product Team (WIPT). A team of individuals that focuses on one select issue, is governed by a charter with enumerated goals (the details of which will be laid out in individual work plans), and is subject to a definitive timeline for the accomplishment of the stated goals. The USD(P&R) shall provide decisions for WIPT issues that cannot be resolved by the SAPR IPT or that require higher level decision-making. Chairs or co-chairs are approved by the Director, SAPRO, who serves as the chair of the SAPR IPT. WIPT membership shall be comprised of full-time Federal employees and active duty military personnel. Membership is explained in individual WIPT work plans.

(bbb) Work plan. Each WIPT is governed by a work plan that provides the WIPT's specific subject, chairs or co-chairs, participants, problem statement, key issues to address, issues outside the scope of the WIPT, timeline, deliverables, and expenses.

§ 105.4

Policy.

It is DoD policy, in accordance with 32 CFR part 103, that:

(a) This part and 32 CFR part 103 establish and implement the DoD SAPR program.

(b) The DoD goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability (see § 105.3), victim support, reporting procedures, and appropriate accountability that enhances the safety and well being of all persons covered by this part and 32 CFR part 103.

(c) 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.

(2) Require that medical care and SAPR services are gender-responsive, culturally-competent, and recovery-oriented as defined in 32 CFR 103.3.

(3) Not provide policy for legal processes within the responsibility of the Judge Advocates General (JAG) of the Military Departments provided in the UCMJ, the Manual for Courts-Martial, or for criminal investigative matters assigned to the IG, DoD.

(d) Command sexual assault awareness and prevention programs and DoD law enforcement (see § 105.3) and criminal justice procedures that enable persons to be held appropriately accountable for their actions shall be supported by all commanders.

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

(f) SARC and SAPR VA shall be used as standard terms as defined in and in accordance with 32 CFR part 103 throughout the Military Departments to facilitate communications and transparency regarding SAPR response capability.

(g) The SARC shall serve as the single point of contact for coordinating care to ensure that sexual assault victims receive appropriate and responsive care. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.

(h) All SARCs shall have direct and unimpeded contact and access to the installation commander (see § 105.3) for the purpose of this part and 32 CFR part 103.

(1) If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service.

(2) For SARCs that operate within deployable commands that are not attached to an installation, they shall have access to the senior commander for the deployable command.

(i) A 24 hour, 7 day per week sexual assault response capability for all locations, including deployed areas, shall be established for persons covered in this part. An immediate, trained sexual assault response capability shall be available for each report of sexual assault in all locations, including in deployed locations.

(j) SARCs, SAPR VAs, and other responders (see § 105.3) will assist sexual assault victims regardless of Service affiliation.

(k) Service member and adult military dependent victims of sexual assault shall receive timely access to comprehensive medical and psychological treatment, including emergency care treatment and services, as described in this part and 32 CFR part 103.

(l) Sexual assault victims shall be given priority, and treated as emergency cases. Emergency care (see § 105.3) shall consist of emergency medical care and the offer of a SAFE. The victim shall be advised that even if a SAFE is declined the victim shall be encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy.

(m) The prohibition of enlistment or commissioning of persons in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault or is required to be registered as a sex offender.

(n) Improper disclosure of confidential communications under Restricted 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. Even proper release of Restricted Reporting information should be limited to those with an official need to know, or as authorized by law.

(o) Information regarding Unrestricted Reports should only be released to personnel with an official need to know, or as authorized by law.

(p) The DoD will have two separate document retention schedules for records of Service members who report that they are victims of sexual assault, based on whether the Service member filed a Restricted or Unrestricted Report as defined in 32 CFR part 103. The record retention system for Restricted Reports shall protect the Service member's desire for confidentiality. Restricted Report cases direct that Department of Defense Forms (DD Form) 2910 and 2911 be retained for at least 5 years, but at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years. Unrestricted Report cases direct that DD Forms 2910 and 2911 be retained for 50 years.

(1) Document Retention for Unrestricted Reports: The SARC will enter the Unrestricted Report DD Form 2910, “Victim Reporting Preference Statement,” in DSAID (see 32 CFR 103.3) or the DSAID-interface Military Service data system as an electronic record, where it will be retained for 50 years from the date the victim signed the DD Form 2910. DD Form 2910 is located at the DoD Forms Management Program Web site at http://www.dtic.mil/​whs/​directives/​infomgt/​forms/​index.htm. The DD Form 2911, “DoD Sexual Assault Forensic Examination (SAFE) Report,” shall be retained in accordance with this part.

(2) Document Retention for Restricted Reports;

(i) The SAFE Kit, which includes the DD Form 2911 or civilian forensic examination report, if available, will be retained for 5 years in a location designated by the Military Service concerned. The 5-year time frame will start from the date the victim signs the DD Form 2910.

(ii) The SARC will retain a hard copy of the Restricted Report DD Form 2910 for 5 years, consistent with DoD guidance for the storage of personally identifiable information (PII). The 5-year time frame for the DD Form 2910 will start from the date the victim signs the DD Form 2910. However, at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.

(q) Any threat to the life or safety of a Military Service member shall be immediately reported to command and DoD law enforcement authorities (see § 105.3) and a request to transfer the victim under these circumstances will be handled in accordance with established Service regulations. DoD recognizes that circumstances may also exist that warrant the transfer of a Service member who makes an Unrestricted Report of sexual assault but may not otherwise meet established criteria for effecting the immediate transfer of Service members. Those Service members may request a transfer pursuant to the procedures in this part.

(r) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent expedited transfer from their assigned command or installation, or to a different location within their assigned command or installation, in accordance with the procedures for commanders in § 105.9 of this part.

(s) Service members who file Unrestricted and Restricted Reports of sexual assault shall be protected from reprisal, or threat of reprisal, for filing a report.

§ 105.5

Responsibilities.

(a) USD(P&R). The USD(P&R), in accordance with the authority in DoDD 5124.02 and 32 CFR part 103, shall:

(1) Oversee the DoD SAPRO (see 32 CFR 103.3) in accordance with 32 CFR part 103.

(2) Direct DoD Component implementation of this part in compliance with 32 CFR part 103.

(3) Direct that Director, SAPRO, be informed of and consulted on any changes in DoD policy or the UCMJ relating to sexual assault.

(4) With the Director, SAPRO, update the Deputy Secretary of Defense on SAPR policies and programs on a semi-annual schedule.

(5) Direct the creation, implementation, and maintenance of DSAID.

(6) Oversee DoD SAPRO in developing DoD requirements for SAPR education, training, and awareness for DoD personnel consistent with this part.

(7) Appoint a general or flag officer (G/FO) or Senior Executive Service (SES) equivalent in the DoD as the Director, SAPRO.

(8) In addition to the Director, SAPRO, assign a military officer from each of the Military Services in the grade of O-4 or above to SAPRO for a minimum tour length of at least 18 months. Of these four officers assigned to the SAPRO, at least one officer shall be in the grade of O-6 or above. See Public Law 112-81.

(9) Establish a DoD-wide certification program (see § 105.3) with a national accreditor to ensure all sexual assault victims are offered the assistance of a SARC or SAPR VA who has obtained this certification.

(b) Director, Department of Defense Human Resource Activity (DoDHRA). The Director, DoDHRA, under the authority, direction, and control of the USD(P&R), shall provide operational support, budget, and allocate funds and other resources for the DoD SAPRO as outlined in 32 CFR part 103.

(c) Assistant Secretary of Defense for Health Affairs (ASD(HA)). The ASD(HA), under the authority, direction, and control of the USD(P&R), shall:

(1) Establish DoD sexual assault healthcare policies, clinical practice guidelines, related procedures, and standards governing the DoD healthcare programs for victims of sexual assault.

(2) Oversee the requirements and procedures in § 105.11 of this part.

(3) Establish guidance to:

(i) Give priority to sexual assault patients at MTFs as emergency cases.

(ii) Require standardized, timely, accessible, and comprehensive medical care at MTFs for eligible persons who are sexually assaulted.

(iii) Require that medical care is consistent with established community standards for the healthcare of sexual assault victims and the collection of forensic evidence from victims, in accordance with the U.S. Department of Justice Protocol, instructions for victim and suspect exams found in the SAFE Kit, and DD Form 2911.

(A) Minimum standards of healthcare intervention that correspond to clinical standards set in the community shall include those established in the U.S. Department of Justice Protocol. However, clinical guidance shall not be solely limited to this resource.

(B) Healthcare providers providing care to sexual assault victims in theaters of operation are required to have access to the current version of the U.S. Department of Justice Protocol.

(iv) Include deliberate planning to strategically position healthcare providers skilled in SAFE at predetermined echelons of care, for personnel with the responsibility of assigning medical assets.

(4) Establish guidance for medical personnel that requires a SARC or SAPR VA to be called in for every incident of sexual assault for which treatment is sought at the MTFs, regardless of the reporting option.

(5) Establish guidance in drafting memorandums of understanding (MOUs) or memorandums of agreement (MOAs) with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims. As part of the MOU or MOA, Victims shall be asked whether they would like the SARC to be notified and, if notified, a SARC or SAPR VA shall respond. Local private or public sector providers shall have processes and procedures in place to assess that local community standards meet or exceed the recommendations for conducting forensic exams of adult sexual assault victims set forth in the U.S. Department of Justice Protocol as a condition of the MOUs or MOAs.

(6) Establish guidelines and procedures for the Surgeon Generals of the Military Departments to require that an adequate supply of resources, to include personnel, supplies, and SAFE Kits, is maintained in all locations where SAFEs may be conducted by DoD, including deployed locations. Maintaining an adequate supply of SAFE Kits is a shared responsibility of the ASD(HA) and Secretaries of the Military Departments.

(7) Establish minimum standards of initial and refresher SAPR training required for all personnel assigned to MTFs. Specialized responder training is required for personnel providing direct care to victims of sexual assault. Minimum standards shall include trauma-informed care (see § 105.3) and medical and mental health care that is gender-responsive, culturally-competent, and recovery-oriented.

(d) General Counsel of the DoD (GC, DoD). The GC, DoD, shall:

(1) Provide legal advice and assistance on proposed policies, DoD issuances, proposed exceptions to policy, and review of all legislative proposals affecting mission and responsibilities of the SAPRO.

(2) Inform the USD(P&R) of any sexual assault related changes to the UCMJ.

(e) IG DoD. The IG DoD shall:

(1) Establish guidance and provide oversight for the investigations of sexual assault in the DoD to meet the SAPR policy and training requirements of this part.

(2) Inform the USD(P&R) of any changes relating to sexual assault investigation policy or guidance.

(3) DoD IG shall collaborate with SAPRO in the development of investigative policy in support of sexual assault prevention and response.

(f) Secretaries of the military departments. The Secretaries of the Military Departments shall:

(1) Establish SAPR policy and procedures to implement this part.

(2) Coordinate all Military Service SAPR policy changes (Department of the Navy-level for the Navy and Marine Corps) with the USD(P&R).

(3) Establish and publicize policies and procedures regarding the availability of a SARC.

(i) Require that sexual assault victims receive appropriate and responsive care and that the SARC serves as the single point of contact for coordinating care for victims.

(ii) Direct that the SARC or a SAPR VA be immediately called in every incident of sexual assault on a military installation. There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entity. In these cases, the MOU or MOA will require that victims shall be asked whether they would like the SARC to be notified as part of the MOU or MOA, and, if yes, a SARC or VA shall be notified and shall respond.

(iii) When a victim has a temporary change of station or PCS or is deployed, direct that SARCs immediately request victim consent in writing to transfer case management documents, which should be documented on the DD Form 2910. Upon receipt of victim consent, SARCs shall expeditiously transfer case management documents to ensure continuity of care and SAPR services. All Federal, DoD, and Service privacy regulations must be strictly adhered to. However, when the SARC has a temporary change of station or PCS or is deployed, no victim consent is required to transfer the case to the next SARC. Every effort must be made to inform the victim of the case transfer. If the SARC has already closed the case and terminated victim contact, no other action is needed.

(iv) Upon the full implementation of the DoD Sexual Assault Advocate Certification Program (D-SAACP), sexual assault victims shall be offered the assistance of a SARC and/or SAPR VA who has been credentialed by the D-SAACP and has passed a National Agency Check (NAC) background check.

(v) Issue guidance to ensure that equivalent standards are met for SAPR where SARCs are not installation-based but instead work within operational and/or deployable organizations.

(4) Establish guidance to meet the SAPR training requirements for legal, MCIO, DoD law enforcement, responders and other Service members in § 105.14 of this part.

(5) Upon request, submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies.

(6) Establish and publicize policies and procedures for reporting a sexual assault.

(i) Require first responders (see § 105.3) to be identified upon their assignment and trained, and require that their response times be continually monitored by their commanders to ensure timely response to reports of sexual assault.

(ii) Ensure established response time is based on local conditions but will reflect that sexual assault victims shall be treated as emergency cases. (See § 105.14 of this part for training requirements.)

(7) Establish policy that ensures commanders are accountable for implementing and executing the SAPR program at their installations consistent with this part, 32 CFR part 103, and their Service regulations.

(8) Establish standards and periodic training for healthcare personnel and healthcare providers regarding the Unrestricted and Restricted Reporting options of sexual assault in accordance with § 105.14 of this part. Enforce eligibility standards of licensed healthcare providers to perform SAFEs.

(9) Establish guidance to direct that all Unrestricted Reports of violations (to include attempts) of sexual assault and non-consensual sodomy, as defined in title 10, U.S.C., against adults are immediately reported to the MCIO, regardless of the severity of the potential punishment authorized by the UCMJ.

(i) Commander(s) of the Service member(s) who is a subject of a sexual assault allegation shall provide in writing all disposition data, to include any administrative or judicial action taken, stemming from the sexual assault investigation to the MCIO.

(ii) Once the investigation is completed, MCIOs shall submit case disposition data that satisfies the reporting requirements for DSAID identified in § 105.15 and the annual reporting requirements in § 105.16 of this part. MCIOs shall submit case disposition data even when the sexual assault case is referred to other DoD law enforcement.

(iii) A unit commander who receives an Unrestricted Report of an incident of sexual assault shall immediately refer the matter to the appropriate MCIO. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e., no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report.

(10) Establish SAPR policy that encourages commanders to be responsive to a victim's desire to discuss his or her case with the installation commander tasked by the Military Service with oversight responsibility for the SAPR program in accordance with 32 CFR part 103.

(11) Establish standards for command assessment of organizational SAPR climate, including periodic follow-up assessments. Adhere to USD(P&R) SAPR guidance and effectiveness of SAPR training, awareness, prevention, and response policies and programs.

(12) As a shared responsibility with ASD(HA), direct installation commanders to maintain an adequate supply of SAFE Kits in all locations where SAFEs are conducted, including deployed locations. Direct that Military Service SAPR personnel, to include medical personnel, are appropriately trained on protocols for the use of the SAFE Kit and comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures.

(13) Establish procedures that require, upon seeking assistance from a SARC, SAPR VA, MCIO, the VWAP, or trial counsel, that each Service member who reports that she or he has been a victim of a sexual assault be informed of and given the opportunity to:

(i) Consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct (see § 105.3), to consult with defense counsel.

(A) When the alleged perpetrator is the commander or in the victim's chain of command, inform such victims shall be informed of the opportunity to go outside the chain of command to report the offense to other commanding officers (CO) or an Inspector General. Victims shall be informed that they can also seek assistance from the DoD Safe Helpline (see § 105.3).

(B) The victim shall be informed that legal assistance is optional and may be declined, in whole or in part, at any time.

(C) Commanders shall require that information and services concerning the investigation and prosecution be provided to victims in accordance with VWAP procedures in DoDI 1030.2.^[4]

(ii) Have a SARC or SAPR VA present when law enforcement or defense counsel interviews the victim.

(14) Establish procedures to ensure that in the case of a general or special court-martial involving a sexual assault as defined in 32 CFR part 103, a copy of the prepared record of the proceedings of the court-martial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court) shall be given to the victim of the offense if the victim testified during the proceedings. The record of the proceedings (prepared in accordance with Service regulations) shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings in accordance with Public Law 112-81.

(15) The commanders shall also require that a completed DD Form 2701, “Initial Information for Victims and Witnesses of Crime,” be distributed to the victim by DoD law enforcement agents. (DD Form 2701 may be obtained via the Internet at http://www.dtic.mil/​whs/​directives/​infomgt/​forms/​eforms/​dd2701.pdf.)

(16) Establish procedures to require commanders to protect the SARC and SAPR VA from coercion, retaliation, and reprisals, related to the execution of their duties and responsibilities.

(17) Establish procedures to protect victims of sexual assault from coercion, retaliation, and reprisal in accordance with DoDD 7050.06.^[5]

(18) Establish Military Service-specific guidance to ensure collateral misconduct is addressed in a manner that is consistent and appropriate to the circumstances, and at a time that encourages continued victim cooperation.

(19) Establish expedited transfer procedures of victims of sexual assault in accordance with §§ 105.4(r) and 105.9 of this part.

(20) Appoint a representative to the SAPR IPT in accordance with § 105.7 of this part, and provide chairs or co-chairs for WIPTs, when requested. Appoint a representative to SAPRO oversight teams upon request.

(21) Provide quarterly and annual reports of sexual assault involving Service members to Director, SAPRO, to be consolidated into the annual Secretary of Defense report to Congress in accordance with 32 CFR part 103 and sections 113 and 4331 of title 10, U.S.C. (See § 105.16 of this part for additional information about reporting requirements.)

(22) Provide budget program and obligation data, as requested by the DoD SAPRO.

(23) Require that reports of sexual assault be entered into DSAID through interface with a Military Service data system or by direct data entry by SARCs.

(i) Data systems that interface with DSAID shall be modified and maintained to accurately provide information to DSAID.

(ii) Only SARCs who have, at a minimum, a favorable NAC shall be permitted access to enter sexual assault reports into DSAID.

(24) Provide Director, SAPRO, a written description of any sexual assault related research projects contemporaneous with commencing the actual research. When requested, provide periodic updates on results and insights. Upon conclusion of such research, a summary of the findings will be provided to DoD SAPRO as soon as practicable.

(25) Establish procedures for supporting the DoD Safe Helpline in accordance with each Military Service-specific MOU or MOA between SAPRO and the Military Departments, to include but not limited to, providing and updating SARC contact information for the referral DoD Safe Helpline database, providing timely response to victim feedback, and publicizing the DoD Safe Helpline to SARCs and Service members.

(i) Utilize the DoD Safe Helpline as the sole DoD hotline to provide crisis intervention, facilitate victim reporting through connection to the nearest SARC, and other resources as warranted.

(ii) The DoD Safe Helpline does not replace local base and installation SARC or SAPR VA contact information.

(26) Establish procedures to implement SAPR training in accordance with § 105.14 of this part, to include both prevention and response.

(27) Require that reports of sexual assaults are provided to the Commanders of the Combatant Commands for their respective area of responsibility on a quarterly basis, or as requested.

(28) For CMGs:

(i) Require the installation commander or the deputy installation commander chair the multi-disciplinary CMG (see § 105.13 of this part) on a monthly basis to review individual cases of Unrestricted Reporting of sexual assault, facilitate monthly victim updates, direct system coordination, accountability, and victim access to quality services. This responsibility may not be delegated.

(ii) Require that the installation SARC (in the case of multiple SARCs on an installation, then the Lead SARC) serve as the co-chair of the CMG. This responsibility may not be delegated.

(iii) If the installation is a joint base or if the installation has tenant commands, the commander of the tenant organization and their designated Lead SARC shall be invited to the CMG meetings. The commander of the tenant organization shall provide appropriate information to the host commander, to enable the host commander to provide the necessary supporting services.

(iv) The Secretaries of the Military Departments shall issue guidance to ensure that equivalent standards are met for case oversight by CMGs in situations where SARCs are not installation-based but instead work within operational and/or deployable organizations.

(29) Establish document retention procedures for Unrestricted and Restricted Reports of sexual assault in accordance with § 105.4(p) of this part.

(30) When drafting MOUs or MOAs with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims, require commanders to include the following provisions:

(i) Ask the victim whether he or she would like the SARC to be notified, and if yes, a SARC or SAPR VA shall respond.

(ii) Local private or public sector providers shall have processes and procedures in place to assess that local community standards meet or exceed those set forth in the U.S. Department of Justice Protocol as a condition of the MOUs or MOAs.

(31) Comply with collective bargaining obligations, if applicable.

(32) Provide SAPR training and education for civilian employees of the military departments in accordance with Section 585 of Public Law 112-81.

(g) Chief, NGB. The Chief, NGB, shall on behalf of the Secretaries of the Army and Air Force, and in coordination with DoD SAPRO and the State Adjutants General, establish and implement SAPR policy and procedures for NG members on duty pursuant to title 32, U.S.C.

(h) Chairman of the Joint Chiefs of Staff. The Chairman of the Joint Chiefs of Staff shall monitor implementation of this part and 32 CFR part 103.

(i) Commanders of the Combatant Commands. The Commanders of the Combatant Commands, through the Chairman of the Joint Chiefs of Staff and in coordination with the other Heads of the DoD Components, shall:

(1) Require that a SAPR capability provided by the Executive Agent (see § 105.3) is incorporated into operational planning guidance in accordance with 32 CFR part 103 and this part.

(2) Require the establishment of an MOU, MOA, or equivalent support agreement with the Executive Agent in accordance with 32 CFR part 103 and this part and requires at a minimum:

(i) Coordinated efforts and resources, regardless of the location of the sexual assault, to direct optimal and safe administration of Unrestricted and Restricted Reporting options with appropriate protection, medical care, counseling, and advocacy.

(A) Ensure a 24 hour per day, 7 day per week response capability. Require first responders to respond in a timely manner.

(B) Response times shall be based on local conditions; however, sexual assault victims shall be treated as emergency cases.

(ii) Notice to SARC of every incident of sexual assault on the military installation, so that a SARC or SAPR VA can respond and offer the victim SAPR services. In situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entities, as part of the MOU or MOA, victims shall be asked whether they would like the SARC to be notified, and if yes, the SARC or SAPR VA shall be notified and shall respond.

§ 105.6

Procedures.

See § 105.7 through § 105.16 of this part.

§ 105.7

Oversight of the SAPR Program.

(a) Director, SAPRO. The Director, SAPRO, under the authority, direction and control of the USD(P&R) through the Director, DoDHRA, shall serve as the single point of authority, accountability, and oversight for the DoD SAPR program. DoD SAPRO provides recommendations to the USD(P&R) on the issue of DoD sexual assault policy matters on prevention, response, oversight, standards, training, and program requirements. The Director, SAPRO shall:

(1) Assist the USD(P&R) in developing, administering, and monitoring the effectiveness of DoD SAPR policies and programs. Implement and monitor compliance with DoD sexual assault policy on prevention and response.

(2) With the USD(P&R), update the Deputy Secretary of Defense on SAPR policies and programs on a semi-annual schedule.

(3) Develop DoD programs to direct SAPR education, training, and awareness for DoD personnel consistent with this part and 32 CFR part 103.

(4) Coordinate the management of DoD SAPR Program and oversee the implementation in the Service SAPR Programs.

(5) Provide technical assistance to the Heads of the DoD Components in addressing matters concerning SAPR and facilitate the identification and resolution of issues and concerns common to the Military Services and joint commands.

(6) Develop strategic program guidance, joint planning objectives, standard terminology, and identify legislative changes needed to advance the SAPR program.

(7) Develop oversight metrics to measure compliance and effectiveness of SAPR training, sexual assault awareness, prevention, and response policies and programs; analyze data; and make recommendations regarding SAPR policies and programs to the USD(P&R) and the Secretaries of the Military Departments.

(8) Establish reporting categories and monitor specific goals included in the annual SAPR assessments of each Military Service and its respective Military Service Academy, as required by 32 CFR part 103, sections 113 and 4331 of title 10, U.S.C., and in accordance with § 105.16 of this part.

(9) Acquire quarterly, annual, and installation-based SAPR data from the Military Services and assemble annual congressional reports involving persons covered by this part and 32 CFR part 103. Consult with and rely on the Secretaries of the Military Departments in questions concerning disposition results of sexual assault cases in their respective Military Department.

(10) Prepare the annual fiscal year (FY) reports submitted by the Secretary of Defense to the Congress on the sexual assaults involving Service members and a report on the members of the Military Service Academies to Congress submitted by the Secretary of Defense.

(11) Publicize SAPR outreach, awareness, prevention, response, and oversight initiatives and programs.

(12) Oversee the development, implementation, maintenance, and function of the DSAID to meet congressional reporting requirements, support Military Service SAPR program management, and conduct DoD SAPRO oversight activities.

(13) Establish, oversee, publicize and maintain the DoD Safe Helpline and facilitate victim reporting through its connection to the nearest SARC, and other resources as warranted.

(14) Establish and oversee the D-SAACP to ensure all sexual assault victims are offered the assistance of a credentialed SARC or SAPR VA.

(15) Annually review the Military Services resourcing and funding of the U.S. Army Criminal Investigation Laboratory (USACIL) in the area of sexual assault.

(i) Assist the Department of the Army in identifying the funding and resources needed to operate USACIL, to facilitate forensic evidence being processed within 60 working days from day of receipt in accordance with section 113 of title 10, U.S.C.

(ii) Encourage the Military Services that use USACIL to contribute to the operation of USACIL by ensuring that USACIL is funded and resourced appropriately to complete forensic evidence processing within 60 working days.

(16) Chair the SAPR IPT.

(b) SAPR IPT. (1) Membership. The SAPR IPT shall include:

(i) Director, SAPRO. The Director shall serve as the chair.

(ii) Deputy Assistant Secretaries for Manpower and Reserve Affairs of the Departments of the Army and the Air Force.

(iii) A senior representative of the Department of the Navy SAPRO.

(iv) A G/FO or DoD SES civilian from: the Joint Staff, Manpower and Personnel (J-1); the Office of the Assistant Secretary of Defense for Reserve Affairs; the NGB; the Office of the GC, DoD; and the Office of the ASD(HA). Other DoD Components representatives shall be invited to specific SAPR IPT meetings when their expertise is needed to inform and resolve issues being addressed. A senior representative from the Coast Guard shall be an invited guest.

(v) Consistent with Section 8(c) of Public Law 100-504, the IG DoD shall be authorized to send one or more observers to attend all SAPR IPT meetings in order to monitor and evaluate program performance.

(2) Duties. The SAPR IPT shall:

(i) Through the chair, advise the USD(P&R) and the Secretary of Defense on SAPR IPT meeting recommendations on policies for sexual assault issues involving persons covered by this part.

(ii) Serve as the implementation and oversight arm of the DoD SAPR Program. Coordinate policy and review the DoD's SAPR policies and programs consistent with this part and 32 CFR part 103, as necessary. Monitor the progress of program elements.

(iii) Meet every other month. Ad hoc meetings may be scheduled as necessary at the discretion of the chair. Members are selected and meetings scheduled according to the SAPR IPT Charter.

(iv) Discuss and analyze broad SAPR issues that may generate targeted topics for WIPTs. WIPTs shall focus on one select issue, be governed by a charter with enumerated goals for which the details will be laid out in individual work plans (see § 105.3), and be subject to a definitive timeline for the accomplishment of the stated goals. Issues that cannot be resolved by the SAPR IPT or that require higher level decision making shall be sent to the USD(P&R) for resolution.

(3) Chair duties. The chair shall:

(i) Advise the USD(P&R) and the Secretary of Defense on SAPR IPT recommendations on policies for sexual assault issues involving persons covered by this part.

(ii) Represent the USD(P&R) in SAPR matters consistent with this part and 32 CFR part 103.

(iii) Oversee discussions in the SAPR IPT that generate topics for WIPTs. Provide final approval for topics, charters, and timelines for WIPTs.

§ 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.^[6] 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.

(1) Unrestricted Reporting. This reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access medical treatment and counseling. When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified, respond or direct a SAPR VA to respond, assign a SAPR VA, and offer the victim healthcare treatment and a SAFE. 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. When a sexual assault is reported through Restricted Reporting, a SARC shall be notified, respond or direct a SAPR VA to respond, assign a SAPR VA, and offer the victim healthcare treatment and a SAFE. The Restricted Reporting option is only available to Service members and adult military dependents. Restricted Reporting may not remain an option in a jurisdiction that requires mandatory reporting, or if a victim first reports to a civilian facility or civilian authority, which will vary by state, territory, and oversees agreements. (See § 105.8(a)(6).) If a victim elects this reporting option, a victim may change from Restricted Report to an Unrestricted Report.

(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 shall immediately call a SARC or SAPR VA to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed.

(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 or legal assistance attorney, a victim may indicate that he or she wishes to file a Restricted Report. If this occurs, a chaplain and legal assistance attorney shall 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 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 victim advocate, in a case arising under the UCMJ, if such communication is made for the purpose of facilitating advice or supportive assistance to the victim.

(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 temporarily suspended from PRP status, 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 or medical and psychological care. These services shall be made available to all eligible sexual assault victims.

(iii) If a victim approaches a SARC and SAPR VA and begins to make a report, but then changes his or her mind and leaves without signing the DD Form 2910 (where the reporting option is selected), the SARC or SAPR VA 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 MRE 514 privilege.

(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. 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 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, or healthcare personnel 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 who has elected Restricted Reporting or where no election has been made by the victim, that commander shall 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. The victim must take advantage of the Restricted Reporting option before the SARC is informed of the investigation. The SARC then shall inform the victim of an ongoing independent investigation of the sexual assault. If an independent investigation begins after the victim has formally elected Restricted Reporting, 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.

(7) Mandatory reporting laws and cases investigated by civilian law enforcement. Health care may be provided and SAFE Kits may be performed in a jurisdiction bound by State and local laws that require certain personnel (usually health care personnel) to report the sexual assault to civilian agencies or law enforcement. In some cases, civilian law enforcement may take jurisdiction of the sexual assault case, or the civilian jurisdiction may inform the military law enforcement or investigative community of a sexual assault that was reported to it. In such instances, it may not be possible for a victim to make a Restricted Report or it may not be possible to maintain the report as a Restricted Report. To the extent possible, DoD will honor the Restricted Report; however, sexual assault victims need to be aware that their Restricted Report is not guaranteed due to circumstances surrounding the independent investigation and requirements of individual state laws. In order to take advantage of the Restricted Reporting option the victim must file a Restricted Report BEFORE the SARC is informed of an ongoing independent investigation of the sexual assault.

(b) Initiating medical care and treatment upon receipt of report. Healthcare personnel will initiate the emergency care and treatment of sexual assault victims and notify the SARC or the SAPR VA. See § 105.11 of this part. 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 complete Unrestricted Reporting of sexual assaults to allow for the provision of victims' services and to pursue 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 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 of sexual assault victims 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.

(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. The SARC's communications with victims are protected by the Restricted Reporting option and the MRE 514 (Executive Order 13593).

(i) Even if the victim chooses not to pursue an investigation, 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 applies as provided in paragraph (e) of this section. Improper disclosure of Restricted Reporting information may result in discipline pursuant to the UCMJ 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 if one or more of the following conditions apply:

(i) Authorized by the victim in writing.

(ii) 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 suspect (repeat offender) could meet this criteria. See similar safety and security exceptions in MRE 514 (Executive Order 13593).

(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.

(iv) Required for the supervision of coordination of direct victim treatment 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 trial counsel 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-R.^[7] 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 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.

(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. 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 offender or the victim.

§ 105.9

Commander and management procedures.

(a) SAPR Management. Commanders, supervisors, and managers at all levels are responsible for the effective implementation of the SAPR program and policy. Military and DoD civilian officials at each management level shall advocate a strong SAPR program and provide education and training that shall enable them to prevent and appropriately respond to incidents of sexual assault.

(b) Installation commander SAPR response procedures. Each installation commander shall develop guidelines to establish a 24 hour, 7 day per week sexual assault response capability for their locations, including deployed areas. For SARCs that operate within deployable commands that are not attached to an installation, senior commanders of the deployable commands shall ensure that equivalent SAPR standards are met.

(c) Commander SAPR response procedures. Each Commander shall:

(1) Encourage the use of the commander's sexual assault response protocols for Unrestricted Reports as the baseline for commander's response to the victim, an offender, and proper response of a sexual assault within a unit. The Commander's Sexual Assault Response Protocols for Unrestricted Reports of Sexual Assault are located in the SAPR Policy Toolkit, on www.sapr.mil. These protocols maybe expanded to meet Military Service-specific requirements and procedures.

(2) Meet with the SARC within 30 days of taking command for one-on-one SAPR training. The training shall include a trends brief for unit and area of responsibility and the confidentiality requirements in Restricted Reporting. The commander must contact the judge advocate for training on the MRE 514 privilege.

(3) Require the SARC to:

(i) Be notified of every incident of sexual assault involving Service members or persons covered in this part, in or outside of the military installation when reported to DoD personnel. When notified, the SARC or SAPR VA shall respond to offer the victim SAPR services. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.

(A) In Restricted Reports, the SARC shall be notified by the healthcare personnel or the SAPR VA.

(B) In Unrestricted Reports, the SARC shall be notified by the DoD responders (see § 105.3).

(ii) Provide the installation commander with information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault.

(iii) Provide the installation commander with non-PII, as defined in § 105.3, within 24 hours of a Restricted Report of sexual assault. This notification may be extended to 48 hours after the report of the incident if there are extenuating circumstances in the deployed environment. Command and installation demographics shall be taken into account when determining the information to be provided.

(iv) Be supervised and evaluated by the installation commander or deputy installation commander in the performance of SAPR procedures in accordance with § 105.10 of this part.

(v) Receive SARC training to follow procedures in accordance with § 105.10 of this part. Upon implementation of the D-SAACP, standardized criteria for the selection and training of SARCs and SAPR VAs shall comply with specific Military Service guidelines and certification requirements, when implemented by SAPRO.

(vi) Follow established procedures to store the DD Form 2910 pursuant to Military Service regulations regarding the storage of documents with PII. (Copies may be obtained via the Internet at http://www.dtic.mil/​whs/​directives/​infomgt/​forms/​eforms/​dd2910.pdf.) Follow established procedures to store the original DD Form 2910 and ensure that all Federal and Service privacy regulations are adhered to.

(4) Evaluate medical personnel per Military Service regulation in the performance of SAPR procedures as described in § 105.11 of this part.

(5) Require adequate supplies of SAFE Kits be maintained by the active component. The supplies shall be routinely evaluated to guarantee adequate numbers to meet the need of sexual assault victims.

(6) Require DoD law enforcement and healthcare personnel to comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures. Modified procedures applicable in cases of Restricted Reports of sexual assault are explained in § 105.12 of this part.

(7) Require that a CMG is conducted on a monthly basis in accordance with § 105.13 of this part.

(i) Chair or attend the CMG, as appropriate. Direct the required CMG members to attend.

(ii) Commanders shall provide victims of a sexual assault who filed an Unrestricted Reports monthly updates regarding the current status of any ongoing investigative, medical, legal, or command proceedings regarding the sexual assault until the final disposition (see § 105.3) of the reported assault, and to the extent permitted pursuant to DoDI 1030.2, Public Law 104-191,^[8] and section 552a of title 5, U.S.C. This is a non-delegable commander duty. This update must occur within 72 hours of the last CMG. Commanders of the NG victims who were sexually assaulted when the victim was on title 10 orders and filed unrestricted reports are required to update, to the extent allowed by law and regulations, the victim's home State title 32 commander as to all or any ongoing investigative, medical, and legal proceedings regarding the extent of any actions being taken by the active component against subjects who remain on title 10 orders.

(8) Ensure that resolution of Unrestricted Report sexual assault cases shall be expedited.

(i) A unit commander who receives an Unrestricted Report of a sexual assault shall immediately refer the matter to the appropriate MCIO, to include any offense identified by title 10, U.S.C. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e., no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report.

(ii) The final disposition of a sexual assault shall immediately be reported by the commander to the assigned MCIO. Dispositions on cases referred by MCIOs to other DoD law enforcement agencies shall be immediately reported to the MCIOs upon their final disposition. MCIOs shall request dispositions on referred cases from civilian law enforcement agencies and, if received, those dispositions shall be immediately reported by the MCIO in DSAID in order to meet the congressional annual reporting requirements. When requested by MCIOs and other DoD law enforcement, commanders shall provide final disposition of sexual assault cases. Final case disposition is required to be inputted into DSAID.

(iii) If the MCIO has been notified of the disposition in a civilian sexual assault case, the MCIO shall notify the commander of this disposition immediately.

(9) Appoint a point of contact to serve as a formal liaison between the installation SARC and the installation FAP and domestic violence intervention and prevention staff (or civilian domestic resource if FAP is not available for a Reserve Component victim) to direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.

(10) Ensure appropriate training of all military responders be directed and documented in accordance with training standards in § 105.14 of this part. Direct and document appropriate training of all military responders who attend the CMG.

(11) Identify and maintain a liaison with civilian sexual assault victim resources. Where necessary, it is strongly recommended that an MOU or MOAs with the appropriate local authorities and civilian service organizations be established to maximize cooperation, reciprocal reporting of sexual assault information, and consultation regarding jurisdiction for the prosecution of Service members involved in sexual assault, as appropriate.

(12) Require that each Service member who reports a sexual assault, pursuant to the respective Military Service regulations, be given the opportunity to consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel. Victims shall be referred to VWAP. Information concerning the prosecution shall be provided to victims in accordance with VWAP procedures in DoDD 7050.06. The Service member victim shall be informed of this opportunity to consult with legal assistance counsel as soon as the victim seeks assistance from a SARC, SAPR VA, or any DoD law enforcement agent or judge advocate.

(13) Direct that DoD law enforcement agents and VWAP personnel provide victims of sexual assault who elect an Unrestricted Report the information outlined in DoDD 1030.01 ^[9] and Public Law 100-504 ^[10] throughout the investigative and legal process. The completed DD Form 2701 shall be distributed to the victim in Unrestricted Reporting cases by DoD law enforcement agents.

(14) Require that MCIOs utilize the investigation descriptions found in § 105.3 in this part.

(15) Establish procedures to ensure that in the case of a general or special court-martial involving a sexual assault as defined in 32 CFR part 103, a copy of the prepared record of the proceedings of the court-martial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court) shall be given to the victim of the offense if the victim testified during the proceedings. The record of the proceedings (prepared in accordance with Service regulations shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings in accordance with Public Law 112-81.

(16) Protect sexual assault victims from coercion, discrimination, or reprisals. Commanders shall protect SARCs and SAPR VAs from coercion, discrimination, or reprisals related to the execution of their SAPR duties and responsibilities.

(17) Require that sexual assault reports be entered into DSAID through interface with a Military Service data system, or by direct data entry by authorized personnel.

(18) Designate an official, usually the SARC, to generate an alpha-numeric Restricted Reporting case number (RRCN).

(19) Appoint a healthcare provider, as an official duty, in each MTF to be the resident point of contact concerning SAPR policy and sexual assault care.

(c) MOUs or MOAs with local civilian authorities. The purpose of MOUs and MOAs is to:

(1) Enhance communications and the sharing of information regarding sexual assault prosecutions, as well as of the sexual assault care and forensic examinations that involve Service members and eligible TRICARE beneficiaries covered by this part.

(2) Collaborate with local community crisis counseling centers, as necessary, to augment or enhance their sexual assault programs.

(3) Provide liaison with private or public sector sexual assault councils, as appropriate.

(4) Provide information about medical and counseling services related to care for victims of sexual assault in the civilian community, when not otherwise available at the MTFs, in order that military victims may be offered the appropriate healthcare and civilian resources, where available and where covered by military healthcare benefits.

(5) Where appropriate or required by MOU or MOA, facilitate training for civilian service providers about SAPR policy and the roles and responsibilities of the SARC and SAPR VA.

(d) Line of Duty (LOD) procedures. (1) Members of the Reserve Components, whether they file a Restricted or Unrestricted Report, shall have access to medical treatment and counseling for injuries and illness incurred from a sexual assault inflicted upon a Service member when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.

(2) Medical entitlements remain dependent on a LOD determination as to whether or not the sexual assault incident occurred in an active duty or inactive duty training status. However, regardless of their duty status at the time that the sexual assault incident occurred, or at the time that they are seeking SAPR services (see § 105.3), Reserve Component members can elect either the Restricted or Unrestricted Reporting option (see 32 CFR 103.3) and have access to the SAPR services of a SARC and a SAPR VA.

(3) The following LOD procedures shall be followed by Reserve Component commanders.

(i) LOD determinations may be made without the victim being identified to DoD law enforcement or command, solely for the purpose of enabling the victim to access medical care and psychological counseling, and without identifying injuries from sexual assault as the cause.

(ii) When assessing LOD determinations for sexual assault victims, the commander of the Reserve command in each component and the directors of the Army and Air NGBs shall designate individuals within their respective organizations to process LODs for victims of sexual assault when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.

(A) Designated individuals shall possess the maturity and experience to assist in a sensitive situation and, if dealing with a Restricted Report, to safeguard confidential communications. These individuals are specifically authorized to receive confidential communications as defined by § 105.3 of this part for the purpose of determining LOD status.

(B) The appropriate SARC will brief the designated individuals on Restricted Reporting policies, exceptions to Restricted Reporting, and the limitations of disclosure of confidential communications as specified in § 105.8(e) of this part. The SARC and these individuals may consult with their servicing legal office, in the same manner as other recipients of privileged information for assistance, exercising due care to protect confidential communications by disclosing only non-identifying information. Unauthorized disclosure may result in disciplinary action, in accordance with § 105.8(d)(1) and (2) of this part.

(iii) For LOD purposes, the victim's SARC may provide documentation that substantiates the victim's duty status as well as the filing of the Restricted Report to the designated official.

(iv) If medical or mental healthcare is required beyond initial treatment and follow-up, a licensed medical or mental health provider must recommend a continued treatment plan.

(v) When evaluating pay and entitlements, the modification of the LOD process for Restricted Reporting does not extend to pay and allowances or travel and transportation incident to the healthcare entitlement. However, at any time the Service member may request an unrestricted LOD to be completed in order to receive the full range of entitlements authorized pursuant to DoDI 1241.2.^[11]

(e) Expedited victim transfer requests. (1) Any threat to life or safety of a Service member shall be immediately reported to command and DoD law enforcement authorities (see § 105.3) and a request to transfer the victim under these circumstances will be handled in accordance with established Service regulations.

(2) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC, SAPR VA, or the Service member's CO at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent expedited transfer from their assigned command or installation, or to a different location within their assigned command or installation. The Service members shall initiate the transfer request and submit the request to their COs. The CO shall document the date and time the request is received.

(i) A presumption shall be established in favor of transferring a Service member (who initiated the transfer request) following a credible report (see § 105.3) of sexual assault. The CO, or the appropriate approving authority, shall make a credible report determination at the time the expedited request is made after considering the advice of the supporting judge advocate, or other legal advisor concerned, and the available evidence based on an MCIO's investigation's information (if available).

(ii) Expedited transfers of Service members who report that they are victims of sexual assault shall be limited to sexual assault offenses reported in the form of an Unrestricted Report.

(A) Sexual assault against adults is defined in 32 CFR part 103.3 and includes Article 120 and Article 125 of the Manual for Courts-Martial, United States. This part does not address victims covered under the FAP in DoDD 6400.1.

(B) If the Service member files a Restricted Report in accordance with 32 CFR part 103 and requests an expedited transfer, the Service member must affirmatively change his or her reporting option to Unrestricted Reporting on the DD Form 2910, in order to be eligible for an expedited transfer.

(iii) When the alleged perpetrator is the commander or otherwise in the victim's chain of command, the SARC shall inform such victims of the opportunity to go outside the chain of command to report the offense to MCIOs, other COs or an Inspector General. Victims shall be informed that they can also seek assistance from a legal assistance attorney or the DoD Safe Helpline.

(iv) The CO shall expeditiously process a transfer request from a command or installation, or to a different location within the command or installation. The CO shall request and take into consideration the Service member's input before making a decision involving a temporary or permanent transfer and the location of the transfer. If approved, the transfer orders shall also include the Service member's dependents or military spouse (as applicable).

(v) The CO must approve or disapprove a Service member's request for a PCS, PCA, or unit transfer within 72 hours from receipt of the Service member's request. The decision to approve the request shall be immediately forwarded to the designated activity that processes PCS, PCA, or unit transfers (see § 105.3).

(vi) If the Service member's transfer request is disapproved by the CO, the Service member shall be given the opportunity to request review by the first G/FO in the chain of command of the member, or a SES equivalent (if applicable). The decision to approve or disapprove the request for transfer must be made within 72 hours of submission of the request for review. If a civilian SES equivalent reviewer approves the transfer, the Secretary of the Military Department concerned shall process and issue orders for the transfer.

(vii) Military Departments shall make every reasonable effort to minimize disruption to the normal career progression of a Service member who reports that he or she is a victim of a sexual assault.

(viii) Expedited transfer procedures require that a CO or the appropriate approving authority make a determination and provide his or her reasons and justification on the transfer of a Service member based on a credible report of sexual assault. A CO shall consider:

(A) The Service member's reasons for the request.

(B) Potential transfer of the alleged offender instead of the Service member requesting the transfer.

(C) Nature and circumstances of the offense.

(D) Whether a temporary transfer would meet the Service member's needs and the operational needs of the unit.

(E) Training status of the Service member requesting the transfer.

(F) Availability of positions within other units on the installation.

(G) Status of the investigation and potential impact on the investigation and future disposition of the offense, after consultation with the investigating MCIOs.

(H) Location of the alleged offender.

(I) Alleged offender's status (Service member or civilian).

(J) Other pertinent circumstances or facts.

(ix) Service members requesting the transfer shall be informed that they may have to return for the prosecution of the case, if the determination is made that prosecution is the appropriate command action.

(x) Commanders shall directly counsel the Service member to ensure that he or she is fully informed regarding:

(A) Reasonably foreseeable career impacts.

(B) The potential impact of the transfer or reassignment on the investigation and case disposition or the initiation of other adverse action against the alleged offender.

(C) The effect on bonus recoupment (if, for example, they cannot work in their Air Force Specialty or Military Occupational Specialty).

(D) Other possible consequences of granting the request.

(xi) Require that expedited transfer procedures for Reserve Component, Army NG, and Air NG members who make Unrestricted Reports of sexual assault be established by commanders within available resources and authorities. If requested by the Service member, the command should allow for separate training on different weekends or times from the alleged offender or with a different unit in the home drilling location to ensure undue burden is not placed on the Service member and his or her family by the transfer. Potential transfer of the alleged offender instead of the Service member should also be considered. At a minimum, the alleged offender's access to the Service member who made the Unrestricted Report shall be controlled, as appropriate.

(xii) Even in those court-martial cases in which the accused has been acquitted, the standard for approving an expedited transfer still remains whether a credible report has been filed. The commander shall consider all the facts and circumstances surrounding the case and the basis for the transfer request.

(f) Military Protective Orders (MPO). In Unrestricted Reporting cases, commanders shall execute the following procedures regarding MPOs:

(1) Require the SARC or the SAPR VA to inform sexual assault victims protected by an MPO, in a timely manner, of the option to request transfer from the assigned command in accordance with section 567(c) of Public Law 111-84.

(2) Notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order, in the event an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO pursuant to Public Law 110-417.

(i) An MPO issued by a military commander shall remain in effect until such time as the commander terminates the order or issues a replacement order.

(ii) The issuing commander shall notify the appropriate civilian authorities of any change made in a protective order, or its termination, covered by chapter 80 of title 10, U.S.C., and the termination of the protective order.

(iii) When an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO, notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order. The appropriate civilian authorities shall include, at a minimum, the local civilian law enforcement agency or agencies with jurisdiction to respond to an emergency call from the residence of any individual involved in the order.

(3) Advise the person seeking the MPO that the MPO is not enforceable by civilian authorities off base and that victims desiring protection off base should seek a civilian protective order (CPO). Off base violations of the MPO should be reported to the issuing commander, DoD law enforcement, and the relevant MCIO for investigation.

(i) Pursuant to section 1561a of Public Law 107-311,^[12] a CPO shall have the same force and effect on a military installation as such order has within the jurisdiction of the court that issued such order. Commanders, MCIOs, and installation DoD law enforcement personnel shall take all reasonable measures necessary to ensure that a CPO is given full force and effect on all DoD installations within the jurisdiction of the court that issued such order.

(ii) If the victim has informed the SARC of an existing CPO, a commander shall require the SARC to inform the CMG of the existence of the CPO and its requirements. After the CPO information is received at the CMG, DoD law enforcement agents shall be required to document CPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status.

(4) Note that MPOs in cases other than sexual assault matters may have separate requirements.

(5) Issuing commanders are required to fill out the DD Form 2873, “Military Protective Order (MPO),” and provide victims and alleged offenders with copies of the completed form. Verbal MPOs can be issued, but need to be subsequently documented with a DD Form 2873, as soon as possible.

(6) Require DoD law enforcement agents document MPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status. The appropriate DoD law enforcement agent representative to the CMG shall brief the CMG chair and co-chair on the existence of an MPO.

(7) If the commander's decision is to deny the MPO request, document the reasons for the denial. Denials of MPO requests go to the installation commander or equivalent command level (in consultation with a judge advocate) for the final decision.

(g) Collateral misconduct in sexual assault cases. (1) Collateral misconduct by the victim of a sexual assault is one of the most significant barriers to reporting assault because of the victim's fear of punishment. Some reported sexual assaults involve circumstances where the victim may have engaged in some form of misconduct (e.g., underage drinking or other related alcohol offenses, adultery, fraternization, or other violations of certain regulations or orders). Commanders shall have discretion to defer action on alleged collateral misconduct by the sexual assault victims (and shall not be penalized for such a deferral decision), until final disposition of the sexual assault case, taking into account the trauma to the victim and responding appropriately so as to encourage reporting of sexual assault and continued victim cooperation, while also bearing in mind any potential speedy trial and statute of limitations concerns.

(2) In accordance with Secretary of Defense Memorandum, the initial disposition authority is withheld from all commanders within the DoD who do not possess at least special court-martial convening authority and who are not in the grade of 0-6 (i.e., colonel or Navy captain) or higher, with respect to the alleged offenses of rape, sexual assault, forcible sodomy, and all attempts to commit such offenses, in violation of Articles 120, 125, and 80 of the Manual for Courts-Martial, United States. Commanders may defer taking action on a victim's alleged collateral misconduct arising from or that relates to the sexual assault incident until the initial disposition action for the sexual assault investigation is completed.

(3) Commanders and supervisors should take appropriate action for the victim's alleged collateral misconduct (if warranted), responding appropriately in order to encourage sexual assault reporting and continued cooperation, while avoiding those actions that may further traumatize the victim. Ultimately, victim cooperation should significantly enhance timely and effective investigations, as well as the appropriate disposition of sexual assaults.

(4) Subordinate commanders shall be advised that taking action on a victim's alleged collateral misconduct may be deferred until final disposition of the sexual assault case. The Military Departments shall establish procedures so that commanders and supervisors are not penalized for deferring collateral misconduct actions for the sexual assault victim until final disposition of the sexual assault case.

(5) Commanders shall have the authority to determine, in a timely manner, how to best manage the disposition of alleged misconduct, to include making the decision to defer disciplinary actions regarding a victim's alleged collateral misconduct until after the final disposition of the sexual assault case, where appropriate. For those sexual assault cases for which the victim's alleged collateral misconduct is deferred, Military Service reporting and processing requirements should take such deferrals into consideration and allow for the time deferred to be subtracted, when evaluating whether a commander took too long to resolve the collateral misconduct.

(h) Commander SAPR prevention procedures. Each commander shall implement a SAPR prevention program that:

(1) Establishes a command climate of sexual assault prevention predicated on mutual respect and trust, recognizes and embraces diversity, and values the contributions of all its Service members.

(2) Emphasizes that sexual assault is a crime and violates the core values of being a professional in the Military Services and ultimately destroys unit cohesion and the trust that is essential for mission readiness and success.

(3) Emphasizes DoD and Military Service policies on sexual assault and the potential legal consequences for those who commit such crimes.

(4) Monitors the organization's SAPR climate and responds with appropriate action toward any negative trends that may emerge.

(5) Identifies and remedies environmental factors specific to the location that may facilitate the commission of sexual assaults (e.g., insufficient lighting).

(6) Emphasizes sexual assault prevention training for all assigned personnel.

(7) Establishes prevention training that focus on identifying the behavior of potential offenders.

§ 105.10

SARC and SAPR VA procedures.

(a) SARC procedures. The SARC shall:

(1) Serve as the single point of contact to coordinate sexual assault response when a sexual assault is reported. All SARCs shall be authorized to perform VA duties in accordance with Military Service regulations, and will be acting in the performance of those duties.

(2) Upon implementation of the D-SAACP, comply with DoD Sexual Assault Advocate Certification requirements.

(3) Be trained in and understand the confidentiality requirements of Restricted Reporting and MRE 514. Training must include exceptions to Restricted Reporting and MRE 514.

(4) Assist the installation commander in ensuring that victims of sexual assault receive appropriate responsive care and understand their available reporting options (Restricted and Unrestricted) and available SAPR services.

(5) Be authorized by this part to accept reports of sexual assault along with the SAPR VA and healthcare personnel.

(6) Report directly to the installation commander in accordance with 32 CFR part 103, to include providing regular updates to the installation commander and assist the commander to meet annual SAPR training requirements, including providing orientation briefings for newly assigned personnel and, as appropriate, providing community education publicizing available SAPR services.

(7) Provide a 24 hour, 7 day per week response capability to victims of sexual assault, to include deployed areas.

(i) SARCs shall respond (see § 105.3) to every Restricted and Unrestricted Report of sexual assault on a military installation and the response shall be in person, unless otherwise requested by the victim.

(ii) Based on the locality, the SARC may ask the SAPR VA to respond and speak to the victim.

(A) There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation under a MOU or MOA with local private or public sector entities. In these cases, pursuant to the MOU or MOA, victims shall be asked whether they would like the SARC to be notified, and, if so, the SARC or SAPR VA shall be notified, and a SARC or SAPR VA shall respond.

(B) When contacted by the SARC or SAPR VA, a sexual assault victim can elect not to speak to the SARC or SAPR VA, or the sexual assault victim may ask to schedule an appointment at a later time to speak to the SARC or SAPR VA.

(iii) SARCs shall provide a response that recognizes the high prevalence of pre-existing trauma (prior to the present sexual assault incident).

(iv) SARCs shall provide a response that is gender-responsive, culturally-competent, and recovery-oriented.

(v) SARCs shall offer appropriate referrals to sexual assault victims and facilitate access to referrals. Provide referrals at the request of the victim.

(A) Encourage sexual assault victims to follow-up with the referrals and facilitate these referrals, as appropriate.

(B) In order to competently facilitate referrals, inquire whether the victim is a Reservist or an NG member to ensure that victims are referred to the appropriate geographic location.

(8) Explain to the victim that the services of the SARC and SAPR VA are optional and these services may be declined, in whole or in part, at any time. The victim may decline advocacy services, even if the SARC or SAPR VA holds a position of higher rank or authority than the victim. Explain to victims the option of requesting a different SAPR VA (subject to availability, depending on locality staffing) or continuing without SAPR VA services.

(i) Explain the available reporting options to the victim.

(A) Have the victim fill out the DD Form 2910 where the victim elects to make a Restricted or Unrestricted Report.

(B) Inform the victim that the DD Form 2910 will be uploaded to DSAID and maintained for 50 years in Unrestricted Reports and retained in hard copy for 5 years in Restricted Reports, for the purpose of providing the victim access to document their sexual assault victimization with the Department of Veterans Affairs for care and benefits. However, at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.

(C) The SARC or SAPR VA shall tell the victim of any local or State sexual assault reporting requirements that may limit the possibility of Restricted Reporting. At the same time, the victims shall be briefed of the protections and exceptions to MRE 514.

(ii) Give the victim a hard copy of the DD Form 2910 with the victim's signature.

(A) Advise the victim to keep the copy of the DD Form 2910 in their personal permanent records as this form may be used by the victim in other matters before other agencies (e.g., Department of Veterans Affairs) or for any other lawful purpose.

(B) Store the original DD Form 2910 pursuant to secure storage Military Service regulations and privacy laws. A SARC being reassigned shall be required to assure their supervisor of the secure transfer of stored DD Forms 2910 to the next SARC. In the event of transitioning SARCs, the departing SARC shall inform their supervisor of the secure storage location of the DD Forms 2910, and the SARC supervisor will ensure the safe transfer of the DD Forms 2910.

(iii) Explain SAFE confidentiality to victims and the confidentiality of the contents of the SAFE Kit.

(iv) Explain the implications of a victim confiding in another person resulting in a third-party report to command or DoD law enforcement (§ 105.8 of this part).

(v) Provide the installation commander with information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault. This notification may be extended to 48 hours after the Unrestricted Report of the incident if there are extenuating circumstances in the deployed environments.

(vi) Provide the installation commander with non-PII within 24 hours of a Restricted Report of sexual assault. This notification may be extended to 48 hours after the Restricted Report of the incident if there are extenuating circumstances in a deployed environment. Command and installation demographics shall be taken into account when determining the information to be provided.

(vii) Exercise oversight responsibility for SAPR VAs authorized to respond to sexual assaults when they are providing victim advocacy services.

(viii) Perform victim advocacy duties, as needed. DoD recognizes the SARC's authority to perform duties as SAPR VAs, even though the SARC may not be designated in writing as a SAPR VA pursuant to Military Service regulation.

(ix) Inform the victim that pursuant to their Military Service regulations, each Service member who reports having been sexually assaulted shall be given the opportunity to consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel.

(A) Inform the victim that information concerning the prosecution shall be provided to them in accordance with DoDI 1030.2.

(B) The Service member victim shall be informed of the opportunity to consult with legal assistance counsel as soon as the victim seeks assistance from a SARC or SAPR VA.

(x) Facilitate education of command personnel on sexual assault and victim advocacy services.

(xi) Facilitate briefings on victim advocacy services to Service members, military dependents, DoD civilian employees (OCONUS), DoD contractors (accompanying the Military Services in contingency operations OCONUS), and other command or installation personnel, as appropriate.

(xii) Facilitate Annual SAPR training.

(xiii) Facilitate the development and collaboration of SAPR public awareness campaigns for victims of sexual assault, including planning local events for Sexual Assault Awareness Month. Publicize the DoD Safe Helpline on all outreach materials.

(xiv) Coordinate medical and counseling services between military installations and deployed units related to care for victims of sexual assault.

(xv) Conduct an ongoing assessment of the consistency and effectiveness of the SAPR program within the assigned area of responsibility.

(xvi) Collaborate with other agencies and activities to improve SAPR responses to and support of victims of sexual assault.

(xvii) Maintain liaison with commanders, DoD law enforcement, and MCIOs, and civilian authorities, as appropriate, for the purpose of facilitating the following protocols and procedures to:

(A) Activate victim advocacy 24 hours a day, 7 days a week for all incidents of reported sexual assault occurring either on or off the installation involving Service members and other persons covered by this part.

(B) Collaborate on public safety, awareness, and prevention measures.

(C) Facilitate ongoing training of DoD and civilian law enforcement and criminal investigative personnel on the SAPR policy and program and the roles and responsibilities of the SARC and SAPR VAs.

(xviii) Consult with command legal representatives, healthcare personnel, and MCIOs, (or when feasible, civilian law enforcement), to assess the potential impact of State laws governing the reporting requirements for adult sexual assault that may affect compliance with the Restricted Reporting option and develop or revise applicable MOUs and MOAs, as appropriate.

(xix) Collaborate with MTFs within their respective areas of responsibility to establish protocols and procedures to direct notification of the SARC and SAPR VA for all incidents of reported sexual assault, and facilitate ongoing training of healthcare personnel on the roles and responsibilities of the SARC and SAPR VAs.

(xx) Collaborate with local private or public sector entities that provide medical care Service members or TRICARE eligible beneficiaries who are for sexual assault victims and a SAFE outside of a military installation through an MOU or MOA.

(A) Establish protocols and procedures with these local private or public sector entities to facilitate direct notification of the SARC for all incidents of reported sexual assault and facilitate training of healthcare personnel of local private or public sector entities on the roles and responsibilities of SARCs and SAPR VAs, for Service members and persons covered by this policy.

(B) Provide off installation referrals to the sexual assault victims, as needed.

(xxi) When a victim has a temporary or PCS or is deployed, request victim consent to transfer case management documents and upon receipt of victim consent, expeditiously transfer case management documents to ensure continuity of care and SAPR services. If the SARC has already closed the case and terminated victim contact, no other action is needed.

(xxii) Document and track the services referred to and requested by the victim from the time of the initial report of a sexual assault through the final case disposition or until the victim no longer desires services.

(A) Enter information into DSAID or Military Service DSAID-interface within 48 hours of the report of sexual assault. In deployed locations that have internet connectivity issues, the time frame is extended to 96 hours.

(B) Maintain in DSAID, or the DSAID-interfaced Military Service data system, an account of the services referred to and requested by the victim for all reported sexual assault incidents, from medical treatment through counseling, and from the time of the initial report of a sexual assault through the final case disposition or until the victim no longer desires services.

(xxiii) Provide information to assist installation commanders to manage trends and characteristics of sexual assault crimes at the Military Service-level and mitigate the risk factors that may be present within the associated environment (e.g., the necessity for better lighting in the showers or latrines and in the surrounding area).

(xxiv) Participate in the CMG to review individual cases of Unrestricted Reports of sexual assault.

(A) The installation SARC, shall serve as the co-chair of the CMG. This responsibility is not delegable. If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service concerned, and shall serve as the co-chair.

(B) Other SARCs and SAPR VAs shall actively participate in each CMG meeting by presenting oral updates on their assigned sexual assault victim cases, providing recommendations and, if needed, seeking assistance from the chair or victim's commander.

(xxv) Familiarize the unit commanders and supervisors of SAPR VAs with the SAPR VA roles and responsibilities, using the DD Form 2909, “Victim Advocate Supervisor Statement of Understanding.” DD Form 2909 is available via the Internet at http://www.dtic.mil/​whs/​directives/​infomgt/​forms/​eforms/​dd2909.pdf.

(b) SAPR VA procedures. (1) The SAPR VA shall:

(i) Upon implementation of the D-SAACP, comply with DoD Sexual Assault Advocate Certification requirements.

(ii) Be trained in and understand the confidentiality requirements of Restricted Reporting and MRE 514. Training must include exceptions to Restricted Reporting and MRE 514.

(iii) Facilitate care and provide referrals and non-clinical support to the adult victim of a sexual assault.

(A) Support will include providing information on available options and resources so the victim can make informed decisions about his or her case.

(B) The SAPR VA will be directly accountable to the SARC in adult sexual assault cases (not under the FAP jurisdiction) and shall provide victim advocacy for adult victims of sexual assault.

(iv) Acknowledge their understanding of their advocacy roles and responsibilities using DD Form 2909.

(2) At the Military Service's discretion, victim advocacy may be provided by a Service member or DoD civilian employee. Personnel responsible for providing victim advocacy shall:

(i) Be notified and immediately respond upon receipt of a report of sexual assault.

(ii) Provide coordination and encourage victim service referrals and ongoing, non-clinical support to the victim of a reported sexual assault and facilitate care in accordance with the Sexual Assault Response Protocols prescribed SAPR Policy Toolkit located on www.sapr.mil. Assist the victim in navigating those processes required to obtain care and services needed. It is neither the SAPR VA's role nor responsibility to be the victim's mental health provider or to act as an investigator.

(iii) Report directly to the SARC while carrying out sexual assault advocacy responsibilities.

§ 105.11

Healthcare provider procedures.

This section provides guidance on medical management of victims of sexual assault to ensure standardized, timely, accessible, and comprehensive healthcare for victims of sexual assault, to include the ability to elect a SAFE Kit. This policy is applicable to all MHS personnel who provide or coordinate medical care for victims of sexual assault covered by this part.

(a) Standardized medical care. To ensure standardized healthcare, the Surgeons General of the Military Departments shall:

(1) Require the recommendations for conducting forensic exams of adult sexual assault victims in the U.S. Department of Justice Protocol be used to establish minimum standards for healthcare intervention for victims of sexual assault. Training for military sexual assault medical examiners and healthcare providers shall be provided to maintain optimal readiness.

(2) Require that MTFs that provide SAFEs for Service members or TRICARE eligible beneficiaries through an MOU or MOA with private or public sector entities verify initially and periodically that those entities meet or exceed standards of the recommendations for conducting forensic exams of adult sexual victims in the U.S. Department of Justice Protocol. In addition, verify that as part of the MOU or MOA, victims are be asked whether they would like the SARC to be notified, and if notified, that a SARC or SAPR VA actually responds.

(3) Require that medical providers providing healthcare to victims of sexual assault in remote areas or while deployed have access to the current version of the U.S. Department of Justice Protocol for conducting forensic exams.

(4) Implement procedures to provide the victim information regarding the availability of a SAFE Kit, which the victim has the option of refusing. If performed in the MTF, the healthcare provider shall use a SAFE Kit and the most current edition of the DD Form 2911.

(5) Require that the SARC be notified of all incidents of sexual assault in accordance with sexual assault reporting procedures in § 105.8 of this part.

(i) Require processes be established to support coordination between healthcare personnel and the SARC.

(ii) If a victim initially seeks assistance at a medical facility, SARC notification must not delay emergency care treatment of a victim.

(6) Require that care provided to sexual assault victims shall be gender-responsive, culturally competent, and recovery-oriented. Healthcare providers giving medical care to sexual assault victims shall recognize the high prevalence of pre-existing trauma (prior to present sexual assault incident) and the concept of trauma-informed care.

(7) If the healthcare provider is not appropriately trained to conduct a SAFE Kit, require that he or she arrange for a properly trained DoD healthcare provider to do so, if available.

(i) In the absence of a properly trained DoD healthcare provider, the victim shall be offered the option to be transported to a non-DoD healthcare provider for the SAFE Kit, if the victim wants a forensic exam. Victims who are not beneficiaries of the MHS shall be advised that they can obtain a SAFE Kit through a local civilian healthcare provider.

(ii) When a SAFE Kit is performed at local civilian medical facilities, those facilities are bound by State and local laws, which may require reporting the sexual assault to civilian law enforcement.

(iii) If the victim requests to file a report of sexual assault, the healthcare personnel, to include psychotherapists and other personnel listed in MRE 513 (Executive Order 13593), shall immediately call a SARC or SAPR VA, to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed.

(8) Require that SAFE Kit evidence collection procedures are the same for a Restricted and an Unrestricted Report of sexual assault.

(i) Upon completion of the SAFE Kit and securing of the evidence, the healthcare provider will turn over the material to the appropriate Military Service-designated law enforcement agency or MCIO as determined by the selected reporting option.

(ii) Upon completion of the SAFE Kit, the sexual assault victim shall be provided with a hard copy of the completed DD Form 2911. Advise the victim to keep the copy of the DD Form 2911 in their personal permanent records as this form may be used by the victim in other matters before other agencies (e.g., Department of Veterans Affairs) or for any other lawful purpose.

(9) Publicize availability of medical treatment (to include behavioral health), and referral services for alleged offenders who are also active duty Service members.

(10) Require the healthcare provider in the course of, preparing a SAFE Kit for Restricted Reports of sexual assault:

(i) Contact the designated installation official, usually the SARC, who shall generate an alpha-numeric RRCN, unique to each incident. The RRCN shall be used in lieu of PII to label and identify evidence collected from a SAFE Kit (e.g., accompanying documentation, personal effects, and clothing). The SARC shall provide (or the SARC will designate the SAPR VA to provide) the healthcare provider with the RRCN to use in place of PII.

(ii) Upon completion of the SAFE Kit, package, seal, and completely label of the evidence container(s) with the RRCN and notify the Military Service designated law enforcement agency or MCIO.

(11) Require that healthcare personnel must maintain the confidentiality of a Restricted Report to include communications with the victim, the SAFE, and the contents of the SAFE Kit, unless an exception to Restricted reporting applies. Healthcare personnel who make an unauthorized disclosure of a confidential communication are subject to disciplinary action and that unauthorized disclosure has no impact on the status of the Restricted Report; all Restricted Reporting information remains confidential and protected. 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, or other adverse personnel or administrative actions.

(b) Timely medical care. To comply with the requirement to provide timely medical care, the Surgeons General of the Military Departments shall:

(1) Implement processes or procedures giving victims of sexual assault priority as emergency cases.

(2) Provide sexual assault victims with priority treatment as emergency cases, regardless of evidence of physical injury, recognizing that every minute a patient spends waiting to be examined may cause loss of evidence and undue trauma. Priority treatment as emergency cases includes activities relating to access to healthcare, coding, and medical transfer or evacuation, and complete physical assessment, examination, and treatment of injuries, including immediate emergency interventions.

(c) Comprehensive medical care. To comply with the requirement to provide comprehensive medical care, the Surgeons General of the Military Departments shall:

(1) Establish processes and procedures to coordinate timely access to emergency, follow-up, and specialty care that may be provided in the direct or civilian purchased care sectors for eligible beneficiaries of the Military Health System.

(2) Evaluate and implement, to the extent feasible, processes linking the medical management of the sexually assaulted patient to the primary care manager. To locate his or her primary care manager, a beneficiary may go to beneficiary web enrollment at https://www.hnfs.com/​content/​hnfs/​home/​tn/​bene/​res/​faqs/​beneficiary/​enrollment_​eligibility/​who_​pcm.html.

(d) Clinically stable. Require the healthcare provider to consult with the victim, once clinically stable, regarding further healthcare options to the extent eligible, which shall include, but are not limited to:

(1) Testing, prophylactic treatment options, and follow-up care for possible exposure to human immunodeficiency virus (HIV) and other sexually transmitted diseases or infections (STD/I).

(2) Assessment of the risk of pregnancy, options for emergency contraception, and any necessary follow-up care and referral services.

(3) Assessment of the need for behavioral health services and provisions for a referral, if necessary or requested by the victim.

(e) Other responsibilities. (1) The Surgeons General of the Military Departments shall:

(i) Identify a primary office to represent their Department in Military Service coordination of issues pertaining to medical management of victims of sexual assault.

(ii) Assign a healthcare provider at each MTF as the primary point of contact concerning DoD and Military Service SAPR policy and for updates in sexual assault care.

(2) The Combatant Commanders shall:

(i) Require that victims of sexual assault in deployed locations within their area of responsibility are transported to an appropriate evaluation site, evaluated, treated for injuries (if any), and offered SAPR VA assistance and a SAFE as quickly as possible.

(ii) Require that U.S. theater hospital facilities (Level 3, North Atlantic Treaty Organization role 3) (see § 105.3) have appropriate capability to provide experienced and trained SARC and SAPR VA services, SAFE providers, and those victims of sexual assault, regardless of reporting status, are medically evacuated to such facilities as soon as possible (within operational needs) of making a report, consistent with operational needs.

§ 105.12

SAFE Kit collection and preservation.

For the purposes of the SAPR Program, forensic evidence collection and document and evidence retention shall be completed in accordance with this section pursuant to 32 CFR part 103, taking into account the medical condition, needs, requests, and desires of each sexual assault victim covered by this part.

(a) Medical services offered to eligible victims of sexual assault include the ability to elect a SAFE Kit in addition to the general medical management related to sexual assault response, to include mental healthcare. The SAFE of a sexual assault victim should be conducted by a healthcare provider who has specialized education and clinical experience in the collection of forensic evidence and treatment of these victims. The forensic component includes gathering information in DD Form 2911 from the victim for the medical forensic history, an examination, documentation of biological and physical findings, collection of evidence from the victim, and follow-up as needed to document additional evidence.

(b) The process for collecting and preserving sexual assault evidence for the Restricted Reporting option is the same as the Unrestricted Reporting option, except that the Restricted Reporting option does not trigger the official investigative process, and any evidence collected has to be placed inside the SAFE Kit, which is marked with the RRCN in the location where the victim's name would have otherwise been written. The victim's SAFE and accompanying Kit is treated as a confidential communication under this reporting option. The healthcare provider shall encourage the victim to obtain referrals for additional medical, psychological, chaplain, victim advocacy, or other SAPR services, as needed. The victim shall be informed that the SARC will assist them in accessing SAPR services.

(c) In situations where installations do not have a SAFE capability, the installation commander will require that the eligible victim, who wishes to have a SAFE, be transported to a MTF or local off-base, non-military facility that has a SAFE capability. A local sexual assault nurse examiner or other healthcare providers who are trained and credentialed to perform a SAFE may also be contracted to report to the MTF to conduct the examination.

(d) The SARC or SAPR VA shall tell the victim of any local or State sexual assault reporting requirements that may limit the possibility of Restricted Reporting before proceeding with the SAFE.

(e) Upon completion of the SAFE in an Unrestricted Reporting case, the healthcare provider shall package, seal, and label the evidence container(s) with the victim's name and notify the Military Service designated law enforcement agency or MCIO.

(1) The DoD law enforcement or MCIO representative shall be trained and capable of collecting and preserving evidence to assume custody of the evidence using established chain of custody procedures, consistent with the guidelines published under the authority and oversight of the IG, DoD.

(2) MOUs and MOAs, with off-base, non-military facilities for the purposes of providing medical care to eligible victims of sexual assault covered under this part, shall include instructions for the notification of a SARC (regardless of whether a Restricted or Unrestricted Report of sexual assault is involved), and procedures of the receipt of evidence and disposition of evidence back to the DoD law enforcement agency or MCIO.

(f) Upon completion of the SAFE in a Restricted Reporting case, the healthcare provider shall package, seal, and label the evidence container(s) with the RRCN and store in accordance with Service regulations.

(1) The DoD law enforcement or MCIO representative shall be trained and capable of collecting and preserving evidence to assume custody of the evidence using established chain of custody procedures, consistent with the guidelines published under the authority and oversight of the IG, DoD. MOUs and MOAs, with off-base, non-military facilities for the purpose of to providing medical care to eligible victims of sexual assault covered under this part, shall include instructions for the notification of a SARC (regardless of whether a Restricted or Unrestricted Report of sexual assault is involved), procedures for the receipt of evidence, how to request an RRCN, instructions on where to write the RRCN on the SAFE Kit, and disposition of evidence back to the DoD law enforcement agency or MCIO.

(2) Any evidence and the SAFE Kit in Restricted Reporting cases (to include the DD Form 2911) shall be stored for 5 years from the date of the victim's Restricted Report of the sexual assault, thus allowing victims additional time to accommodate, for example, multiple deployments or deployments exceeding 12 months.

(i) The SARC will contact the victim at the 1-year mark of the report to inquire whether the victim wishes to change their reporting option to Unrestricted.

(A) If the victim does not change to Unrestricted Reporting, the SARC will explain to the victim that the SAFE Kit, DD Form 2911, and the DD Form 2910 will be retained for a total of 5 years from the time the victim signed the DD Form 2910 (electing the Restricted Report) and will then be destroyed. (However, at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the Department of Defense Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.) The SARC will emphasize to the victim that his or her privacy will be respected and he or she will not be contacted again by the SARC. The SARC will stress it is the victim's responsibility from that point forward, if the victim wishes to change from a Restricted to an Unrestricted Report, to affirmatively contact a SARC before the 5-year retention period elapses.

(B) The victim will be advised again to keep a copy of the DD Form 2910 and the DD Form 2911 in his or her personal permanent records as these forms may be used by the victim in other matters with other agencies (e.g., Department of Veterans Affairs) or for any other lawful purpose.

(C) If the victim needs another copy of either of these forms, he or she can request it at this point and the SARC shall assist the victim in accessing the requested copies within 7 business days. The SARC will document this request in the DD Form 2910.

(ii) At least 30 days before the expiration of the 5-year storage period, the DoD law enforcement or MCIO shall notify the installation SARC that the storage period is about to expire and confirm with the SARC that the victim has not made a request to change to Unrestricted Reporting or made a request for any personal effects.

(A) If there has been no change, then at the expiration of the storage period in compliance with established procedures for the destruction of evidence, the designated activity, generally the DoD law enforcement agency or MCIO, may destroy the evidence maintained under that victim's RRCN.

(B) If, before the expiration of the 5-year storage period, a victim changes his or her reporting preference to the Unrestricted Reporting option, the SARC shall notify the respective MCIO, which shall then assume custody of the evidence maintained by the RRCN from the DoD law enforcement agency or MCIO, pursuant to established chain of custody procedures. MCIO established procedures for documenting, maintaining, and storing the evidence shall thereafter be followed.

(1) The DoD law enforcement agency or MCIO, which will receive forensic evidence from the healthcare provider if not already in custody, and label and store such evidence shall be designated.

(2) The designated DoD law enforcement agency or MCIO representative must be trained and capable of collecting and preserving evidence in Restricted Reports prior to assuming custody of the evidence using established chain of custody procedures.

(iii) Evidence will be stored by the DoD law enforcement agency or MCIO until the 5-year storage period for Restricted Reporting is reached or a victim changes to Unrestricted Reporting.

§ 105.13

Case management for Unrestricted Reports of sexual assault.

(a) General. (1) The installation commander or the deputy installation commander shall chair the CMG on a monthly basis to review individual cases, facilitate monthly victim updates, and direct system coordination, accountability, entry of disposition and victim access to quality services. This responsibility may not be delegated. If there are no cases in a given month, the CMG will still meet to ensure training, processes, and procedures are complete for the system coordination.

(2) The installation SARC shall serve as the co-chair of the CMG. This responsibility may not be delegated. Only a SARC who is a Service member or DoD civilian employee may co-chair the multi-disciplinary CMG.

(3) Required CMG members shall include: victim's commander; all SARCs assigned to the installation (mandatory attendance regardless of whether they have an assigned victim being discussed); victim's SAPR VA, MCIO and DoD law enforcement who are involved with and working on a specific case; victim's healthcare provider or mental health and counseling services provider; chaplain, legal representative, or SJA; installation personnel trained to do a safety assessment of current sexual assault victims; victim's VWAP representative (or civilian victim witness liaison, if available). MCIO, DoD law enforcement and the legal representative or SJA shall provide case dispositions. The CMG chair will ensure that the appropriate principal is available.

(4) If the installation is a joint base or if the installation has tenant commands, the commander of the tenant organization and the designated Lead SARC shall be invited to the CMG meetings. The commander of the tenant organization shall provide appropriate information to the host commander, to enable the host commander to provide the necessary supporting services.

(5) CMG members shall receive the mandatory SAPR training pursuant to § 105.14 of this part.

(6) Service Secretaries shall issue guidance to ensure that equivalent standards are met for case oversight by CMGs in situations where SARCs are not installation-based but instead work within operational and/or deployable organizations.

(b) Procedures. (1) The CMG members shall carefully consider and implement immediate, short-term, and long-term measures to help facilitate and assure the victim's well-being and recovery from the sexual assault. They will closely monitor the victim's progress and recovery and strive to protect the victim's privacy, ensuring only those with an official need to know have the victim's name and related details. Consequently, where possible, each case shall be reviewed independently bringing in only those personnel associated with the case, as well as the CMG chair and co-chair.

(2) The CMG chair shall:

(i) Ensure that commander(s) of the Service member(s) who is a subject of a sexual assault allegation, provide in writing all disposition data, to include any administrative or judicial action taken, stemming from the sexual assault investigation to the MCIO. Information provided by commanders is used to meet the Department's requirements for the submission of criminal history data to the Criminal Justice Information System, Federal Bureau of Investigation; and to record the disposition of offenders into DSAID.

(ii) Require that case dispositions are communicated to the sexual assault victim within 2 business days of the final disposition decision. The CMG chair will require that the appropriate paperwork (pursuant to Service regulation) is submitted for each case disposition within 24 hours, which shall be inputted into DSAID or a DSAID Service interface system by the designated officials.

(iii) Monitor and require immediate transfer of sexual assault victim information between SARCs and SAPR VAs, in the event of the SARC's or SAPR VA's change of duty station, to ensure continuity of SAPR services for victims.

(iv) Require that the SARCs and SAPR VAs actively participate in each CMG meeting by presenting oral updates (without disclosing protected communications and victim confidentiality), providing recommendations and, if needed, the SARC or the SAPR VA shall affirmatively seek assistance from the chair or victim's commander.

(v) Require an update of the status of each expedited transfer request and MPO.

(vi) If the victim has informed the SARC of an existing CPO, the chair shall require the SARC to inform the CMG of the existence of the CPO and its requirements.

(vii) After protective order documentation is presented at the CMG from the SARC or the SAPR VA, the DoD law enforcement agents at the CMG will document the information provided in their investigative case file, to include documentation for Reserve Component personnel in title 10 status.

(3) The CMG Co-chair shall:

(i) Confirm that all reported sexual assaults are entered into DSAID or a DSAID Service interface system within 48 hours of the report of sexual assault. In deployed locations that have internet connectivity issues, the time frame is extended to 96 hours.

(ii) Confirm that only the SARC is inputting information into DSAID or a DSAID Service interface system.

(iii) Keep minutes of the monthly meetings to include those in attendance and issues discussed. CMG participants are only authorized to share case information with those who have an official need to know.

(4) For each victim, the assigned SARC and SAPR VA will confirm at the CMG that the victim has been informed of their SAPR services to include counseling, medical, and legal resources without violating victim confidentiality.

(5) For each victim, each CMG member who is involved with and working on a specific case will provide an oral update without violating victim confidentiality or disclosing privileged communications.

(6) For each victim, the victim's commander will confirm at the CMG that the victim has received a monthly update from the victim's commander of her/his case within 72 hours of the last CMG, to assure timely victim updates. This responsibility may not be delegated.

(7) On a joint base or if the installation has tenant commands:

(i) The CMG membership will explore the feasibility of joint use of existing SAPR resources, to include rotating on-call status of SARCs and SAPR VAs. Evaluate the effectiveness of communication among SARCs, SAPR VAs, and first responders.

(ii) The CMG chair will request an analysis of data to determine trends and patterns of sexual assaults and share this information with the commanders on the joint base or the tenant commands. The CMG membership will be briefed on that trend data.

(8) There will be a safety assessment capability. The CMG chair will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim.

(i) The CMG chair will require designated installation personnel, who have been trained and are able to perform a safety assessment of each sexual assault victim, to become part of the CMG and attend every monthly meeting.

(ii) The CMG chair will request a safety assessment by trained personnel of each sexual assault victim at each CMG meeting, to include a discussion of expedited military transfers or MPOs, if needed.

(iii) The CMG co-chair will confirm that the victims are advised that MPOs are not enforceable off-base by civilian law enforcement.

(iv) If applicable, the CMG chair will confirm that both the suspect and the victim have a hard copy of the MPO.

(v) Form a High-Risk Response Team if a victim is assessed to be in a high-risk situation. The CMG chair will immediately stand up a multi-disciplinary High-Risk Response Team to continually monitor the victim's safety, by assessing danger and developing a plan to manage the situation.

(A) The High-Risk Response Team shall be chaired by the victim's commander and, at a minimum, include the suspect's commander; the victim's SARC and SAPR VA; the MCIO, the judge advocate, and the VWAP assigned to the case, victim's healthcare provider or mental health and counseling services provider; and the personnel who conducted the safety assessment.

(B) The High-Risk Response Team shall make their first report to the installation commander, CMG chair, and CMG co-chair within 24 hours of being activated. A briefing schedule for the CMG chair and co-chair will be determined, but briefings shall occur at least once a week while the victim is on high-risk status.

(C) The High-Risk Response Team assessment of the victim shall include, but is not limited to evaluating:

(1) Victim's safety concerns.

(2) Suspect's access to the victim or whether the suspect is stalking or has stalked the victim.

(3) Previous or existing relationship or friendship between the victim and the suspect, or the suspect and the victim's spouse, or victim's dependents. The existence of children in common. The sharing (or prior sharing) of a common domicile.

(4) Whether the suspect (or the suspect's friends or family members) has destroyed victim's property; threatened or attacked the victim; or threatened, attempted, or has a plan to harm or kill the victim or the victim's family members; or intimidated the victim to withdraw participation in the investigation or prosecution.

(5) Whether the suspect has threatened, attempted, or has a plan to commit suicide.

(6) Whether the suspect has used a weapon, threatened to use a weapon, or has access to a weapon that may be used against the victim.

(7) Whether the victim has sustained serious injury during the sexual assault incident.

(8) Whether the suspect has a history of law enforcement involvement regarding domestic abuse, assault, or other criminal behavior.

(9) Whether the victim has a civilian protective order or command has an MPO against the suspect, or there has been a violation of a civilian protective order or MPO by the suspect.

(10) History of drug or alcohol abuse by either the victim or the suspect.

(11) Whether the suspect exhibits erratic or obsessive behavior, rage, agitation, or instability.

(12) Whether the suspect is a flight risk.

§ 105.14

Training requirements for DoD personnel.

(a) Management of training requirements. (1) Commanders, supervisors, and managers at all levels shall be responsible for the effective implementation of the SAPR program.

(2) Military and DoD civilian officials at each management level shall advocate a robust SAPR program and provide education and training that shall enable them to prevent and appropriately respond to incidents of sexual assault.

(3) Data shall be collected according to the annual reporting requirements in accordance with Public Law 111-383 and explained in § 105.16 of this part.

(b) General training requirements. (1) The Secretaries of the Military Departments and the Chief, NGB, shall direct the execution of the training requirements in this section to individually address SAPR prevention and response in accordance with § 105.5 of this part. These SAPR training requirements shall apply to all Service members and DoD civilian personnel who supervise Service members.

(i) The Secretaries and the Chief, NGB, shall develop dedicated SAPR training to ensure comprehensive knowledge of the training requirements.

(ii) The SAPR training, at a minimum, shall incorporate adult learning theory, which includes interaction and group participation.

(iii) Upon request, the Secretaries and the Chief, NGB, shall submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies.

(2) Commanders and managers responsible for training shall require that all personnel (i.e., all Service members, DoD civilian personnel who supervise Service members, and other personnel as directed by the USD(P&R)) are trained and that completion of training data is annotated. Commanders for accession training will ensure all new accessions are trained and that completion of training data is annotated.

(3) If responsible for facilitating the training of civilians supervising Service members, the unit commander or civilian director shall require all SAPR training requirements in this section are met. The unit commander or civilian equivalent shall be accountable for requiring data collection regarding the training.

(4) The required subject matter for the training shall be appropriate to the Service member's grade and commensurate with their level of responsibility, to include:

(i) Defining what constitutes sexual assault. Utilizing the term “sexual assault” as defined in 32 CFR part 103.

(ii) Explaining why sexual assaults are crimes.

(iii) Defining the meaning of “consent” as defined in 32 CFR part 103.

(iv) Explaining offender accountability and UCMJ violations.

(v) Explaining the distinction between sexual harassment and sexual assault and that both are unacceptable forms of behavior even though they may have different penalties. Emphasizing the distinction between civil and criminal actions.

(vi) Explaining available reporting options (Restricted and Unrestricted), the advantages and limitations of each option, the effect of independent investigations on Restricted Reports (See § 105.8(a)(6) of this part) and explaining MRE 514.

(vii) Providing an awareness of the SAPR program (DoD and Service) and command personnel roles and responsibilities, including all available resources for victims on and off base.

(viii) Identifying prevention strategies and behaviors that may reduce sexual assault, including bystander intervention, risk reduction, and obtaining affirmative consent.

(ix) Discussing process change to ensure that all sexual assault response services are gender-responsive, culturally-competent, and recovery-oriented.

(x) Discussing expedited transfers and MPO procedures.

(xi) Providing information to victims when the alleged perpetrator is the commander or in the victim's chain of command, to go outside the chain of command to report the offense to other COs or an Inspector General. Victims shall be informed that they can also seek assistance from a legal assistance attorney or the DoD Safe Helpline.

(xii) Discussing of document retention for sexual assault documents (DD Forms 2910 and 2911), to include retention in investigative records. Explaining why it is recommended that sexual assault victims retain sexual assault records for potential use in the Department of Veterans Affairs benefits applications.

(c) DoD personnel training requirements. Refer to Military Service-specific training officers that maintain personnel training schedules.

(1) Accessions training shall occur upon initial entry.

(i) Mirror the General Training Requirements in § 105.14(b).

(ii) Provide scenario-based, real-life situations to demonstrate the entire cycle of prevention, reporting, response, and accountability procedures to new accessions to clarify the nature of sexual assault in the military environment.

(2) Annual training shall occur once a year and is mandatory for all Service members regardless of rank or occupation or specialty.

(i) Mirror the General Training Requirements in § 105.14(b).

(ii) Explain the nature of sexual assault in the military environment using scenario-based, real-life situations to demonstrate the entire cycle of prevention, reporting, response, and accountability procedures.

(iii) Deliver to Service members in a joint environment from their respective Military Services and incorporate adult learning theory.

(3) Professional military education (PME) and leadership development training (LDT).

(i) For all trainees, PME and LDT shall mirror the General Training Requirements in § 105.14.

(ii) For senior noncommissioned officers and commissioned officers, PME and LDT shall occur during developmental courses throughout the military career and include:

(A) Explanation and analysis of the SAPR program.

(B) Explanation and analysis of the necessity of immediate responses after a sexual assault has occurred to counteract and mitigate the long-term effects of violence. Long-term responses after sexual assault has occurred will address the lasting consequences of violence.

(C) Explanation of rape myths (See SAPR Toolkit on www.sapr.mil), facts, and trends pertaining to the military population.

(D) Explanation of the commander's and senior enlisted Service member's role in the SAPR program.

(E) Review of all items found in the commander's protocols for Unrestricted Reports of sexual assault. (See SAPR Toolkit on www.sapr.mil.)

(F) Explanation of what constitutes reprisal according to § 105.3 and procedures for reporting allegations of reprisal in accordance with DoDD 7050.06.

(4) Pre-deployment training shall be provided.

(i) Mirror the General Training Requirements in § 105.14(b).

(ii) Explain risk reduction factors tailored to the deployment location.

(iii) Provide a brief history of the specific foreign countries or areas anticipated for deployment, and the area's customs, mores, religious practices, and status of forces agreement. Explain cultural customs, mores, and religious practices of coalition partners.

(iv) Identify the type of trained sexual assault responders who are available during the deployment (e.g., law enforcement personnel, legal personnel, SARC, SAPR VAs, healthcare personnel, chaplains).

(v) Upon implementation of the D-SAACP, and unless previously credentialed, include completion of certification for SARCs and VAs.

(5) Post-deployment reintegration training shall occur within 30 days of returning from deployment and:

(i) Commanders of re-deploying personnel will ensure training completion.

(ii) Explain available counseling and medical services, reporting options, and eligibility benefits for Service members and the Reserve Component.

(iii) Explain MRE 514. Explain that Reserve members not in active service at the time of the incident or at the time of the report can make a Restricted or Unrestricted report with the SARC or SAPR VA when on active duty and then be eligible to receive SAPR services.

(6) Pre-command training shall occur prior to filling a command position.

(i) Mirror the General Training Requirements in § 105.14(b).

(A) The personnel trained shall include all officers who are selected for command and the unit's senior enlisted Service member.

(B) The required subject matter for the training shall be appropriate to the level of responsibility and commensurate with level of command.

(ii) Explain rape myths, facts, and trends.

(iii) Provide awareness of the SAPR program and explain the commander's and senior enlisted Service member's role in executing their SAPR service program.

(iv) Review all items found in the commander's protocols for Unrestricted Reports of sexual assault. (See SAPR Toolkit on www.sapr.mil.)

(v) Explain what constitutes reprisal and procedures for addressing reprisal allegations.

(d) G/FO and SES personnel training requirements. G/FO and SES personnel training shall occur at the initial executive level program training and annually thereafter. Mirror the General Training Requirements in § 105.14(b).

(1) The Military Services' executive level management offices are responsible for tracking data collection regarding the training.

(2) The required subject matter for the training shall be appropriate to the level of responsibility and commensurate with level of command.

(3) Training guidance for other DoD components other than the Military Departments, will be provided in a separate issuance.

(e) Military Recruiters. Military recruiter training shall occur annually and mirror the General Training Requirements in § 105.14(b).

(f) Training for civilians who supervise service members. Training is required for civilians who supervise Service members, for all civilians in accordance with section 585 of Public Law 112-81 and, if feasible, highly recommended for DoD contractors. Training shall occur annually and mirror the General Training Requirements in § 105.14(b).

(g) Responder training requirements. To standardize services throughout the DoD, as required in 32 CFR part 103, all DoD sexual assault responders shall receive the same baseline training. These minimum training standards form the baseline on which the Military Services and specialized communities can build. First responders are composed of personnel in the following disciplines or positions: SARCs; SAPR VAs; healthcare personnel; DoD law enforcement; MCIOs; judge advocates; chaplains; firefighters and emergency medical technicians. Commanders and VWAP personnel can be first responders. Commanders receive their SAPR training separately.

(1) All responder training shall:

(i) Be given in the form of initial and annual refresher training from their Military Service in accordance with § 105.5 of this part. Responder training is in addition to annual training.

(ii) Be developed for each responder functional area from each military service and shall:

(A) Explain the different sexual assault response policies and critical issues.

(1) DoD SAPR policy, including the role of the SARC, SAPR VA, victim witness liaison, and CMG.

(2) Military Service-specific policies.

(3) Unrestricted and Restricted Reporting as well as MRE 514.

(4) Exceptions to Restricted Reporting and limitations to use.

(5) Change in victim reporting preference election.

(6) Victim advocacy resources.

(B) Explain the requirement that SARCs must respond in accordance with this part.

(C) Describe local policies and procedures with regards to local resources, referrals, procedures for military and civilians as well as collaboration and knowledge of resources and referrals that can be utilized at that specific geographic location.

(D) Explain the range of victim responses to sexual assault to include:

(1) Victimization process, including re-victimization and secondary victimization.

(2) Counterintuitive behavior.

(3) Impact of trauma on memory and recall.

(4) Potential psychological consequences, including acute stress disorder and post traumatic stress disorder.

(E) Explain deployment issues, including remote location assistance.

(F) Explain the possible outcomes of investigations of sexual assault.

(G) Explain the possible flow of a sexual assault investigation. (See flowchart in the SAPR Policy Toolkit, located at www.sapr.mil.)

(H) Be completed prior to deployment.

(I) Recommend, but not require, that SAPR training for responders include safety and self care.

(2) SARC training shall:

(i) Provide the responder training requirements in § 105.14(g)(1).

(ii) Be scenario-based and interactive. Provide for role play where a trainee SARC counsels a sexual assault victim and is critiqued by a credentialed SARC and/or an instructor.

(iii) Explain roles and responsibilities and command relationships.

(iv) Explain the different reporting options, to include the effects of independent investigations (see § 105.8 of this part). Explain the exceptions to Restricted Reporting, with special emphasis on suspending Restricted Reporting where it is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person.

(v) Provide training on entering reports of sexual assault into DSAID through interface with a Military Service data systems or by direct data entry. Provide training on potential discovery obligations regarding any notes entered in DSAID.

(vi) Provide training on document retention of Restricted and Unrestricted cases.

(vii) Provide training on expedited transfer and MPO procedures.

(viii) Provide instruction on all details of SAPR VA screening, including addressing:

(A) What to do if SAPR VA is a recent victim, or knows sexual assault victims.

(B) What to do if SAPR VA was accused of being an offender or knows someone who was accused.

(C) Identifying the SAPR VA's personal biases.

(D) The necessary case management skills.

(1) Required reports and proper documentation as well as records management.

(2) Instruction to complete DD Form 2910 and proper storage according to Federal service privacy regulations.

(3) Ability to conduct SAPR training, when requested by the SARC or commander.

(4) Transferring cases to another installation SARC.

(ix) Explain the roles and responsibilities of the VWAP and DD Form 2701.

(x) Inform SARCs of the existence of the SAPRO Web site at http://www.sapr.mil, and encourage its use for reference materials and general DoD-level SAPR information.

(3) SAPR VA training shall:

(i) Provide the responder training requirements in § 105.14(g)(1).

(ii) Be scenario-based and interactive. Provide for role play where a trainee SAPR VA counsels a sexual assault victim, and then that counseling session is critiqued by an instructor.

(iii) Explain the different reporting options, to include the effects of independent investigations (see § 105.8 of this part). Explain the exceptions to Restricted Reporting, with special emphasis on suspending Restricted Reporting where it is necessary to prevent or lessen a serious and imminent threat to the health or safety of the victim or another person.

(iv) Include:

(A) Necessary critical advocacy skills.

(B) Basic interpersonal and assessment skills.

(1) Appropriate relationship and rapport building.

(2) Sensitivity training to prevent re-victimization.

(C) Crisis intervention.

(D) Restricted and Unrestricted Reporting options as well as MRE 514.

(E) Roles and limitations, to include: command relationship, SAPR VA's rights and responsibilities, reporting to the SARC, and recognizing personal biases and issues.

(F) Preparing proper documentation for a report of sexual assault.

(G) Document retention in Restricted and Unrestricted cases.

(H) Expedited transfer and MPO procedures.

(I) Record keeping rules for protected disclosures relating to a sexual assault.

(J) A discussion of ethical issues when working with sexual assault victims as a VA.

(K) A discussion of individual versus system advocacy.

(L) A review of the military justice process and adverse administrative actions.

(M) Overview of criminal investigative process and military judicial requirements.

(N) A review of the issues in victimology.

(1) Types of assault.

(2) Health consequences such as mental and physical health.

(3) Cultural and religious differences.

(4) Victims' rights and the victim's role in holding offenders appropriately accountable and limitations on offender accountability when the victim elects Restricted Reporting.

(5) Healthcare management of sexual assault and medical resources and treatment options to include the medical examination, the forensic examination, mental health and counseling, pregnancy, and STD/I and HIV.

(6) Identification of safety issues and their immediate report to the SARC or law enforcement, as appropriate.

(7) Identification of reprisal and retaliation actions against the victim; procedures for responding to reprisal actions and their immediate reporting to the SARC and the VWAP; safety planning to include how to prevent retaliation or reprisal actions against the victim.

(8) Separation of the victim and offender as well as the MPO and CPO process.

(9) Expedited transfer process for the victim.

(O) An explanation of the roles and responsibilities of the VWAP and DD Form 2701.

(P) Safety and self care, to include vicarious trauma.

(4) Healthcare personnel training shall be in two distinct training categories:

(i) Training for Healthcare Personnel Assigned to an MTF. In addition to the responder training requirements in § 105.14(g)(1), MTF healthcare personnel shall be trained and remain proficient in medical treatment resources, in conducting a sexual assault patient interviews, and in conducting the SAFE Kit process. Healthcare personnel who received a Restricted Report shall immediately call a SARC or SAPR VA, so a DD Form 2910 can be completed.

(ii) Training for Healthcare Providers Performing SAFEs in MTFs (see 32 CFR 103.4). In addition to the responder training requirements in § 105.14(g)(1), healthcare providers performing SAFEs shall be trained and remain proficient in conducting SAFEs. Healthcare providers who may be called on to provide comprehensive medical treatment to a sexual assault victim, including performing SAFEs are: obstetricians and gynecologists and other licensed practitioners (preferably family physicians, emergency medicine physicians, and pediatricians); advanced practice nurses with specialties in midwifery, women's health, family health, and pediatrics; physician assistants trained in family practice or women's health; and registered nurses with documented education, training, and clinical practice in sexual assault examinations in accordance with the U.S. Department of Justice Protocol. Healthcare personnel who received a Restricted Report shall immediately call a SARC or SAPR VA so a DD Form 2910 can be completed.

(iv) Healthcare personnel and provider training shall:

(A) Explain how to conduct a sexual assault patient interview to obtain medical history and assault information.

(B) Explain how to conduct a SAFE in accordance with the U.S. Department of Justice Protocol and include explanations on:

(1) SAFE Kit and DD Form 2911.

(2) Toxicology kit for suspected drug-facilitated cases.

(3) Chain of custody.

(4) Translation of findings.

(5) Proper documentation.

(6) Storage of evidence in Restricted Reports (e.g., RRCN).

(7) Management of the alleged offender.

(8) Relevant local and State laws and restrictions.

(9) Medical treatment issues during deployments including remote location assistance to include: location resources including appropriate personnel, supplies (drying device, toluidine blue dye, colposcope, camera), standard operating procedures, location of SAFE Kit and DD Form 2911; and availability and timeliness of evacuation to echelon of care where SAFEs are available.

(C) Explain how to deal with emergency contraception and STD/I treatment.

(D) Discuss physical and mental health assessment.

(E) Explain how to deal with trauma, to include:

(1) Types of injury.

(2) Photography of injuries.

(3) Behavioral health and counseling needs.

(4) Consulting and referral process.

(5) Appropriate follow-up.

(6) Drug or alcohol facilitated sexual assault, to include review of best practices, victim interview techniques, and targeted evidence collections.

(F) Explain medical record management.

(G) Explain legal process and expert witness testimony.

(5) DoD law enforcement (those elements of DoD components, to include MCIOs, authorized to investigate violations of the UCMJ) training shall:

(i) Include the Responder Training requirements in § 105.14(g)(1) for DoD law enforcement personnel who may respond to a sexual assault complaint.

(ii) Remain consistent with the guidelines published under the authority and oversight of the IG, DoD. In addition, DoD law enforcement training shall:

(A) Explain how to respond in accordance with the SAPR program.

(1) Notify the command, SARC, and SAPR VA.

(2) Work with SAPR VAs and SARCs, and medical personnel.

(B) Explain how to work with sexual assault victims, to include the effects of trauma on sexual assault victims. Ensure victims are informed of and accorded their rights, in accordance with DoDI 1030.2 and DoDD 1030.01 by contacting the VWAP.

(C) Take into consideration the victim's safety concerns and medical needs.

(D) Review IG policy and Military Service regulations regarding the legal transfer of the SAFE Kit and the retention of the DD Form 2911 or reports from civilian SAFEs in archived files.

(E) Discuss sex offender issues.

(6) Training for MCIO agents assigned to investigate sexual assaults shall:

(i) In accordance with Public Law 112-81, be detailed in IG policy.

(ii) Adhere to the responder training requirements in § 105.14(g)(1) for military and civilian criminal investigators assigned to MCIOs who may respond to a sexual assault complaint.

(iii) Remain consistent with the guidelines published under the authority and oversight of the IG, DoD. In addition, MCIO training shall:

(A) Include initial and annual refresher training on essential tasks specific to investigating sexual assault investigations that explain that these reports shall be included in sexual assault quarterly and annual reporting requirements found in § 105.16 of this part.

(B) Include IG policy and Military Service regulations regarding the legal transfer of the SAFE Kit and the retention of the DD Form 2911 or reports from civilian SAFEs in archived files.

(C) Explain how to work with victims of sexual assault.

(1) Effects of trauma on the victim to include impact of trauma and stress on memory as well as balancing investigative priorities with victim needs.

(2) Ensure victims are informed of and accorded their rights, in accordance with DoDI 1030.2 and DoDD 1030.01 by contacting the VWAP.

(3) Take into consideration the victim's safety concerns and medical needs.

(D) Explain how to respond to a sexual assault in accordance with to 32 CFR part 103, this part, and the assigned Military Service regulations on:

(1) Notification to command, SARC, and VWAP.

(2) Investigating difficult cases to include drug and alcohol facilitated sexual assaults, having multiple suspects and sexual assaults in the domestic violence context as well as same-sex sexual assaults (male/male or female/female).

(E) Review of available research regarding false information and the factors influencing false reports and false information, to include possible victim harassment and intimidation.

(F) Explain unique issues with sex offenders to include identifying, investigating, and documenting predatory behaviors.

(G) Explain how to work with the SARC and SAPR VA to include SAPR VA and SARC roles, responsibilities, and limitations; victim services and support program; and MRE 514.

(7) Judge advocate training shall:

(i) Prior to performing judge advocate duties, adhere to the Responder Training requirements in § 105.14(g)(1) for judge advocates who are responsible for advising commanders on the investigation or disposition of, or who prosecute or defend, sexual assault cases.

(ii) Explain legal support services available to victims.

(A) Pursuant to the respective Military Service regulations, explain that each Service member who reports a sexual assault shall be given the opportunity to consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel.

(1) Provide information concerning the prosecution, if applicable, in accordance with DoD 8910.1-M. Provide information regarding the opportunity to consult with legal assistance counsel as soon as the victim seeks assistance from a SARC, SAPR VA, or any DoD law enforcement agent or judge advocate.

(2) Ensure victims are informed of their rights and the VWAP program, in accordance with DoDI 1030.2 and DoDD 1030.01.

(B) Explain the sex offender registration program.

(iii) Explain issues encountered in the prosecution of sexual assaults.

(A) Typologies (characteristics) of victims and sex offenders in non-stranger sexual assaults.

(B) Addressing the consent defense.

(C) How to effectively prosecute alcohol and drug facilitated sexual assault.

(D) How to introduce forensic and scientific evidence (e.g., SAFE Kits, DNA, serology, toxicology).

(E) MRE issues and updates to regard sexual assault prosecution in accordance with MRE 412, 413, and 615 of the Manual for Courts-Martial, United States.

(F) How to advise victims, SAPR VAs, and VWAP about the military justice process, and MRE 514. Explain:

(1) Victims' rights during trial and defense counsel interviews (e.g., guidance regarding answering questions on prior sexual behavior, interviewing parameters, coordinating interviews, case outcomes).

(2) In the case of a general or special court-martial involving a sexual assault as defined in 32 CFR part 103, a copy of the prepared record of the proceedings of the court-martial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court) shall be given to the victim of the offense if the victim testified during the proceedings in accordance with Public Law 112-81.

(3) Guidance on victim accompaniment (e.g., who may accompany victims to attorney interviews, what is their role, and what should they do if victim is being mistreated).

(4) MRE 412 of the Manual for Courts-Martial, United States, to investigations pursuant to an Article 32 hearing.

(5) Protecting victim privacy (e.g., access to medical records and conversations with SARC or SAPR VA, discovery consequences of making victim's mental health an issue, MRE 514).

(8) Legal Assistance Attorney training shall adhere to the requirements of annual training in § 105.14(c)(2). Attorneys shall receive training in order to have the capability to provide legal assistance to sexual assault victims in accordance with the USD(P&R) Memorandum. Legal assistance attorney training shall include:

(i) The VWAP, including the rights and benefits afforded the victim.

(A) The role of the VWAP and what privileges do or do not exist between the victim and the advocate or liaison.

(B) The nature of the communication made to the VWAP as opposed to those made to the legal assistance attorney.

(ii) The differences between the two types of reporting in sexual assault cases.

(iii) The military justice system, including the roles and responsibilities of the trial counsel, the defense counsel, and investigators. This may include the ability of the Government to compel cooperation and testimony.

(iv) The services available from appropriate agencies or offices for emotional and mental health counseling and other medical services.

(v) The availability of protections offered by military and civilian restraining orders.

(vi) Eligibility for and benefits potentially available as part of transitional compensation benefits found in section 1059 of title 10, U.S.C., and other State and Federal victims' compensation programs.

(vii) Traditional forms of legal assistance.

(9) Chaplains, chaplain assistants and religious personnel training shall:

(i) Adhere to the responder training requirements in § 105.14(g)(1).

(ii) Pre-deployment SAPR training shall focus on counseling services needed by sexual assault victims and offenders in contingency and remote areas.

(iii) Address:

(A) Privileged communications and the Restricted Reporting policy rules and limitations, including legal protections for chaplains and their confidential communications, assessing victim or offender safety issues (while maintaining chaplain's confidentiality), and MRE 514.

(B) How to support victims with discussion on sensitivity of chaplains in addressing and supporting sexual assault victims, identifying chaplain's own bias and ethical issues, trauma training with pastoral applications, and how to understand victims' rights as prescribed in DoDI 1030.2 and DoDD 1030.01.

(C) Other counseling and support topics.

(1) Offender counseling should include: assessing and addressing victim and offender safety issues while maintaining confidentiality; and counseling an offender when the victim is known to the chaplain (counseling both the offender and the victim when there is only one chaplain at a military installation).

(2) Potential distress experienced by witnesses and bystanders over the assault they witnessed or about which they heard.

(3) Counseling for SARCs, SAPR VAs, healthcare personnel, chaplains, JAGs, law enforcement or any other professionals who routinely works with sexual assault victims and may experience secondary effects of trauma.

(4) Providing guidance to unit members and leadership on how to mitigate the impact that sexual assault has on a unit and its individuals, while keeping in mind the needs and concerns of the victim.

§ 105.15

Defense Sexual Assault Incident Database (DSAID).

(a) Purpose. (1) In accordance with section 563 of Public Law 110-417, DSAID shall support Military Service SAPR program management and DoD SAPRO oversight activities. It shall serve as a centralized, case-level database for the collection and maintenance of information regarding sexual assaults involving persons covered by this part. DSAID will include information, if available, about the nature of the assault, the victim, services offered to the victim, the offender, and the disposition of the reports associated with the assault. DSAID will serve as the DoD's SAPR source for internal and external requests for statistical data on sexual assault in accordance with section 563 of Public Law 110-417. The DSAID has been assigned OMB Control Number 0704-0482. DSAID contains information provided by the military services, which are the original source of the information.

(2) Disclosure of data stored in DSAID will only be granted when disclosure is authorized or required by law or regulation.

(b) Procedures. DSAID shall:

(1) Contain information about sexual assaults reported to the DoD involving persons covered by this part, both via Unrestricted and Restricted Reporting options.

(2) Include adequate safeguards to shield PII from unauthorized disclosure. The system will not contain PII about victims who make a Restricted Report. Information about sexual assault victims and subjects will receive the maximum protection allowed under the law. DSAID will include stringent user access controls.

(3) Assist with annual and quarterly reporting requirements, identifying and managing trends, analyzing risk factors or problematic circumstances, and taking action or making plans to eliminate or to mitigate risks. DSAID shall store case information. Closed case information shall be available to DoD SAPRO for SAPR program oversight, study, research, and analysis purposes. DSAID will provide a set of core functions to satisfy the data collection and analysis requirements for the system in five basic areas: data warehousing, data query and reporting, SARC victim case management functions, subject investigative and legal case information, and SAPR program administration and management.

(4) Receive information from the Military Services' existing data systems or direct data entry by authorized Military Service personnel.

(c) Notification procedure and record access procedures. (1) Requests for information contained in DSAID are answered by the Services. All requests for information should be made to the DoD Component that generated the information in DSAID. Individuals seeking to determine whether information about themselves is contained in this system of records or seeking access to records about themselves should address written inquiries to the appropriate Service office (see Service list at www.sapr.mil).

(2) Requests for information to the DoD Components must be responded to by the office(s) designated by the Component to respond to Freedom of Information Act and Privacy Act requests. Requests shall not be informally handled by the SARCs.

§ 105.16

Sexual assault annual and quarterly reporting requirements.

(a) Annual reporting for the military services. The USD(P&R) submits annual FY reports to Congress on the sexual assaults involving members of the Military Services. Each Secretary of the Military Departments must submit their Military Service report for the prior FY to the Secretary of Defense through the DoD SAPRO by March 1. The Secretary of the Navy must provide separate reports for the Navy and the Marine Corps. The annual report is accomplished in accordance with section 1631(d) of Public Law 111-383, and includes:

(1) The policies, procedures, and processes in place or implemented by the SAPR program during the report year in response to incidents of sexual assault.

(2) An assessment of the implementation of the policies and procedures on the prevention, response, and oversight of sexual assaults in the military to determine the effectiveness of SAPR policies and programs, including an assessment of how Service efforts executed DoD SAPR priorities.

(3) Any plans for the following year on the prevention of and response to sexual assault, specifically in the areas of advocacy, healthcare provider and medical response, mental health, counseling, investigative services, legal services, and chaplain response.

(4) Matrices for Restricted and Unrestricted Reports of the number of sexual assaults involving Service members, that includes case synopses, and disciplinary actions taken in substantiated cases and relevant information.

(5) Analyses of the matrices of the number of sexual assaults involving Service members.

(b) Quarterly reports. The quarterly data reports from the Military Services are the basis for annual reports, including the data fields necessary for comprehensive reporting. The information collected to prepare the quarterly reports has been assigned Reporting Control Symbol DD-P&R(A)2205. In quarterly reports, the policies and planned actions are not required to be reported. Each quarterly report and subsequent FY annual report shall update the status of those previously reported investigations that had been reported as opened but not yet completed or with action pending at the end of a prior reporting period. Once the final action taken is reported, that specific investigation no longer needs to be reported. This reporting system will enable the DoD to track sexual assault cases from date of initiation to completion of command action or disposition. Quarterly reports are due:

(1) January 31 for investigations opened during the period of October 1-December 31.

(2) April 30 for investigations opened during the period of January 1-March 31.

(3) July 31 for investigations opened during the period of April 1-June 30.

(4) The final quarterly report (July 1-September 30) shall be included as part of the FY annual report.

(c) Annual reporting for the Military Service Academies (MSA). Pursuant to section 532 of Public Law 109-364, the USD(P&R) submits annual reports on sexual harassment and violence at MSAs to the House of Representatives and Senate Armed Services Committees each academic program year (APY). The MSA Sexual Assault Survey conducted by the Defense Manpower Data Center (DMDC) has been assigned Report Control Symbol DD-P&R(A)2198.

(1) In odd-numbered APYs, superintendents will submit a report to their respective Military Department Secretaries assessing their respective MSA policies, training, and procedures on sexual harassment and violence involving cadets and midshipmen no later than October 15 of the following APY. DMDC will simultaneously conduct gender relations surveys of cadets and midshipmen to collect information relating to sexual assault and sexual harassment at the MSA to supplement these reports. DoD SAPRO will summarize and consolidate the results of each MSA's APY assessment, which will serve as the mandated DoD annual report to Congress.

(2) In even-numbered APYs, DoD SAPRO and the DoD Diversity Management and Equal Opportunity (DMEO) Office conduct MSA site visits and a data call to assess each MSA's policies; training, and procedures regarding sexual harassment and violence involving cadets and midshipmen; perceptions of Academy personnel regarding program effectiveness; the number of reports and corresponding case dispositions; program accomplishments progress made; and challenges. Together with the DoD SAPRO and DMEO MSA visits, DMDC will conduct focus groups with cadets and midshipmen to collect information relating to sexual harassment and violence from the MSAs to supplement this assessment. DoD SAPRO consolidates the assessments and focus group results of each MSA into a report, which serves as the mandated DoD annual report to Congress that will be submitted in December of the following APY.

(d) Annual reporting of installation data. Installation data is drawn from the annual reports of sexual assault listed in § 105.16(a). The Secretaries of each Military Department must submit their Military Service report of sexual assault for the prior FY organized by installation to the Secretary of Defense through the DoD SAPRO by April 30. The Secretary of the Navy must provide separate reports for the Navy and the Marine Corps. Reports will contain matrices for Restricted and Unrestricted Reports of the number of sexual assaults involving Service members organized by military installation, and matrices including the synopsis and disciplinary actions taken in substantiated cases.

§ 105.17

Sexual assault offense—investigation disposition descriptions.

Pursuant to the legislated requirements specified in Public Law 111-383, the following definitions are used by the Services for annual and quarterly reporting of the dispositions of subjects in sexual assault investigations conducted by the MCIOs. Services must adapt their investigative policies and procedures to comply with these definitions.

(a) Substantiated reports. Dispositions in this category come from Unrestricted Reports that have been investigated and found to have sufficient evidence to provide to command for consideration of action to take some form of punitive, corrective, or discharge action against an offender.

(1) Substantiated reports against Service member subjects. A substantiated report of sexual assault is an Unrestricted Report that was investigated by an MCIO, provided to the appropriate military command for consideration of action, and found to have sufficient evidence to support the command's action against the subject. Actions against the subject may include court-martial charge preferral, Article 15 UCMJ punishment, nonjudicial punishment, administrative discharge, and other adverse administrative action that result from a report of sexual assault or associated misconduct (e.g., adultery, housebreaking, false official statement, etc.).

(2) Substantiated reports by Service member victims. A substantiated report of a sexual assault victim's Unrestricted Report that was investigated by a MCIO, and provided to the appropriate military command for consideration of action, and found to have sufficient evidence to support the command's action against the subject. However, there are instances where an Unrestricted Report of sexual assault by a Service member victim may be substantiated but the command is not able to take action against the person who is the subject of the investigation. These categories include the following: the subject of the investigation could not be identified; the subject died or deserted from the Service before action could be taken; the subject was a civilian or foreign national not subject to the UCMJ; or the subject was a Service member being prosecuted by a civilian or foreign authority.

(b) Substantiated report disposition descriptions. In the event of several types of action a commander takes against the same offender, only the most serious action taken is reported, as provided for in the following list, in descending order of seriousness. For each offender, any court-martial sentence and non-judicial punishment administered by commanders pursuant to Article 15 of the UCMJ is reported annually to the DoD in the case synopses or via DSAID. Further additional actions of a less serious nature in the descending list should also be included in the case synopses reported to the Department. Public Law 111-383 requires the reporting of the number of victims associated with each of the following disposition categories.

(1) Commander action for sexual assault offense. (i) Court-martial charges preferred (initiated) for sexual assault offense. A court-martial charge was preferred (initiated) for at least one of the offenses punishable by Articles 120 and 125 of the UCMJ, or an attempt to commit an Article 120 or 125, UCMJ offense that would be charged as a violation of Article 80 of the UCMJ. (See Rules for Courts-Martial (RCM) 307 and 401 of the Manual for Courts-Martial, United States.^[13] )

(ii) Nonjudicial punishments (Article 15, UCMJ). Disciplinary action for at least one of the UCMJ offenses comprised within the SAPR definition of sexual assault that was initiated pursuant to Article 15 of the UCMJ.

(iii) Administrative discharges. Commander action taken to involuntarily separate the offender from military service that is based in whole or in part on an offense within the SAPR definition of sexual assault.

(iv) Other adverse administrative actions. In the absence of an administrative discharge action, any other administrative action that was initiated (including corrective measures such as counseling, admonition, reprimand, exhortation, disapproval, criticism, censure, reproach, rebuke, extra military instruction, or other administrative withholding of privileges, or any combination thereof), and that is based in whole or in part on an offense within the SAPR definition of sexual assault. Cases should be placed in this category only when an administrative action other than an administrative discharge is the only action taken. If an “other administrative action” is taken in combination with another more serious action (e.g., courts-martial, non-judicial punishment, administrative discharge, or civilian or foreign court action), only report the case according to the more serious action taken.

(2) Commander action for other criminal offense. Report actions against subjects in this category when there is probable cause for an offense, but only for a non-sexual assault offense (i.e., the commander took action on a non-sexual assault offense because an investigation showed that the allegations did not meet the required elements of, or there was insufficient evidence for, any of the UCMJ offenses that constitute the SAPR definition of sexual assault). Instead, an investigation disclosed other offenses arising from the sexual assault allegation or incident that met the required elements of, and there was sufficient evidence for, another offense under the UCMJ. Report court-martial charges preferred, non-judicial punishments, and sentences imposed in the case synopses provided to the DoD. To comply with Public Law 111-383, the number of victims associated with each of the following categories must also be reported.

(i) Court-martial charges preferred (initiated) for a non-sexual assault offense.

(ii) Nonjudicial punishments (Article 15, UCMJ) for non-sexual assault offense.

(iii) Administrative discharges for non-sexual assault offense.

(iv) Other adverse administrative actions for non-sexual assault offense.

(c) Command action precluded. Dispositions reported in this category come from an Unrestricted Report that was investigated by a MCIO and provided to the appropriate military command for consideration of action, but the evidence did not support taking action against the subject of the investigation because the victim declined to participate in the military justice action, there was insufficient evidence of any offense to take command action, the report was unfounded by command, the victim died prior to completion of the military justice action, or the statute of limitations for the alleged offense(s) expired. Public Law 111-383 requires the reporting of the number of victims associated with each of the following disposition categories.

(1) Victim declined to participate in the military justice action. Commander action is precluded or declined because the victim has declined to further cooperate with military authorities or prosecutors in a military justice action.

(2) Insufficient evidence for prosecution. Although the allegations made against the alleged offender meet the required elements of at least one criminal offense listed in the SAPR definition of sexual assault (see 32 CFR part 103), there was insufficient evidence to legally prove those elements beyond a reasonable doubt and proceed with the case. (If the reason for concluding that there is insufficient evidence is that the victim declined to cooperate, then the reason for being unable to take action should be entered as “victim declined to participate in the military justice action,” and not entered as “insufficient evidence.”)

(3) Victim's death. Victim died before completion of the military justice action.

(4) Statute of limitations expired. Determination that, pursuant to Article 43 of the UCMJ, the applicable statute of limitations has expired and the case may not be prosecuted.

(d) Command action declined. Dispositions in this category come from an Unrestricted Report that was investigated by a MCIO and provided to the appropriate military command for consideration of action, but the commander determined the report was unfounded as to the allegations against the subject of the investigation. Unfounded allegations reflect a determination by command, with the supporting advice of a qualified legal officer, that the allegations made against the alleged offender did not occur nor were attempted. These cases are either false or baseless. Public Law 111-383 requires the reporting of the number of victims associated with this category.

(1) False cases. Evidence obtained through an investigation shows that an offense was not committed nor attempted by the subject of the investigation.

(2) Baseless cases. Evidence obtained through an investigation shows that alleged offense did not meet at least one of the required elements of a UCMJ offense constituting the SAPR definition of sexual assault or was improperly reported as a sexual assault.

(e) Subject outside DoD's legal authority. When the subject of the investigation or the action being taken are beyond DoD's jurisdictional authority or ability to act, use the following descriptions to report case disposition. To comply with Public Law 111-383, Services must also identify the number of victims associated with these dispositions and specify when there was insufficient evidence that an offense occurred in the following categories.

(1) Offender is unknown. The investigation is closed because no person could be identified as the alleged offender.

(2) Subject is a civilian or foreign national not subject to UCMJ. The subject of the investigation is not amenable to military UCMJ jurisdiction for action or disposition.

(3) Civilian or foreign authority is prosecuting Service member. A civilian or foreign authority has the sexual assault allegation for action or disposition, even though the alleged offender is also subject to the UCMJ.

(4) Offender died or deserted. Commander action is precluded because of the death or desertion of the alleged offender or subject of the investigation.

(f) Report unfounded by MCIO. Determination by the MCIO that the allegations made against the alleged offender did not occur nor were attempted. These cases are either false or baseless. Public Law 111-383 requires the reporting of the number of victims associated with this category.

(1) False cases. Evidence obtained through a MCIO investigation shows that an offense was not committed nor attempted by the subject of the investigation.

(2) Baseless cases. Evidence obtained through an investigation shows that alleged offense did not meet at least one of the required elements of a UCMJ offense constituting the SAPR definition of sexual assault or was improperly reported as a sexual assault.

§ 105.18

Information collection requirements.

(a) The DSAID and the DD Form 2910, referred to in this Instruction, have been assigned OMB control number 0704-0482.

(b) The annual report regarding sexual assaults involving Service members and improvement to sexual assault prevention and response programs referred to in §§ 105.5(f)(22); 105.7(a)(9), 105.7(a)(10), and 105.7(a)(12); 105.9(c)(8)(ii); and 105.16(a) and (d) of this part is submitted to Congress in accordance with section 1631(d) of Public Law 111-383 and is coordinated with the Assistant Secretary of Defense for Legislatives Affair in accordance with the procedures in DoDI 5545.02.

(c) The quarterly reports of sexual assaults involving Service members referred to in §§ 105.5, 105.7, 105.14, 105.15, and 105.16 of this part are prescribed by DoDD 5124.02 and have been assigned a DoD report control symbol in accordance with the procedures in DTM 12-004 and DoD 8910.1-M.

(d) The Service Academy sexual assault survey referred to in § 105.16(c) of this part has been assigned DoD report control symbol in accordance with the procedures in DTM 12-004 and DoD 8910.1-M.

Dated: March 18, 2013.

Patricia Toppings,

OSD Federal Register Liaison, Department of Defense.

Footnotes

1.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​640001p.pdf.

2.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​640006p.pdf.

3.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​302041p.pdf.

1.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​512402p.pdf.

2.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​512402p.pdf.

3.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​891001m.pdf.

4.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​103002p.pdf.

5.  Available: http://www.dodig.mil/​HOTLINE/​Documents/​DODInstructions/​DOD%20Directive%207050.06.pdf.

6.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​602518r.pdf.

7.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​540011p.pdf.

8.  Available: http://www.gpo.gov/​fdsys/​pkg/​PLAW-104publ191/​pdf/​PLAW-104publ191.pdf.

9.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​103001p.pdf.

10.  Available: http://ntl.bts.gov/​DOCS/​iga.html.

11.  Available: http://www.dtic.mil/​whs/​directives/​corres/​pdf/​124102p.pdf.

12.  Available: http://www.gpo.gov/​fdsys/​pkg/​PLAW-107publ311/​pdf/​PLAW-107publ311.pdf.

13.  Available: http://www.dod.gov/​dodgc/​images/​mcm2012.pdf.