(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 Sec. 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 Sec. 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 Sec. 105.10 of this part.
(v) Receive SARC training to follow procedures in accordance with Sec. 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 Sec. 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 Sec. 105.12 of this part.
(7) Require that a CMG is conducted on a monthly basis in accordance with Sec. 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 Sec. 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.---------------------------------------------------------------------------
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(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 Sec. 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.---------------------------------------------------------------------------
\9\ Available: http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf.
\10\ Available: http://ntl.bts.gov/DOCS/iga.html.---------------------------------------------------------------------------
(14) Require that MCIOs utilize the investigation descriptions found in Sec. 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.
(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 Sec. 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 Sec. 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 Sec. 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 Sec. 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\---------------------------------------------------------------------------
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(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 Sec. 105.3) and a request to transfer the victim under these circumstances will be handled in accordance with established Service regulations.
(1) Any threat to life or safety of a Service member shall be immediately reported to command and DoD law enforcement authorities (see Sec. 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 Sec. 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 Sec. 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.---------------------------------------------------------------------------
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(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.
(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.