As 31(b)log reports here, on Friday, the Department of Defense issued this new instruction on responding to sexual assault allegations.  DoDI 5505.18 (Jan. 25, 2013).  The thrust of the new policy is o enhance coordination with civilian law enforcement authorities and facilitate prosecution of alleged sexual assaults by civilian authorities where the military can’t or won’t prosecute.

Specific interesting provisions include:

(1)  “If the alleged assault occurred on a military installation and the accused and/or victim is not a military member or dependent, the Federal Bureau of Investigation must be notified . . . .”;

(2)  “If the location is subject to concurrent jurisdiction, the local police department must be notified and may accept investigative responsibility if the [Military Criminal Investigative Organization (MCIO)] declines; or the investigation may be worked jointly between the local law enforcement agency and the MCIO. If the location is subject to exclusive State jurisdiction, the State has investigative authority with the MCIO providing assistance as requested or deemed appropriate.”;

(3) “All adult sexual assault investigations assumed by an MCIO will be investigated thoroughly and in compliance with DoD Instructions 5505.03, 5505.07, 5505.11, and 5505.14.”;

(4)  “Adult sexual assault allegations, as listed in the Glossary, of which an MCIO becomes aware, will be investigated regardless of the sexual orientation of either the victim or the subject of the investigation (hereinafter referred to as the “subject”). Unless pertinent and significant to the investigation, the sexual orientation of a subject, victim, or any individual associated with the investigation:

“a. Will not be addressed during the course of the investigation.

“b. Will only be documented if it is an essential part of the investigation.

“c. Must not be disclosed to anyone except those with an official need to know.”;

(5) “MCIOs may not close an adult sexual assault investigation in which they are the lead investigative agency without the written disposition data documented in the final investigative report or database.”;

(6)  “All MCIO adult sexual assault investigative reports will be retained for a period of 50 years.”;

(7) “[I]n all investigations relating to sexual assaults involving members of the Armed Forces; as defined in the Glossary, all physical and forensic evidence must be retained for a period of at least 5 years from the date of the seizure of the evidence. However, items gathered as evidence may be returned to their rightful owner prior to the 5-year period only after written evidence disposition is obtained from the convening authority when:

“a. It is determined that the allegation is unfounded, i.e., the crime did not occur and/or it was a false allegation;

“b. The subject is acquitted and the appeal process has been exhausted; or

“c. The evidence is taken from a suspect who is later deemed to be the wrong person, i.e., mistaken identity.”

13 Responses to “New DOD Instruction on responding to sexual assault allegations”

  1. SFC V says:

    After the case has been looked over, by the TC, STC, CoJ, DSJA, and SJA, with the conclusion being a recommendation not to prosecute do those writing these regulations honestly expect the local DA’s office to reach a different conclusion?
     
    At the end of the day proving guilt beyond a reasonable doubt is the same.   

  2. Zachary Spilman says:

    “b. The subject is acquitted and the appeal process has been exhausted; or”

    Reminds me of the story of the young associate who went to a different city to try a case. When the jury reached its verdict, he rushed to the phone to report the outcome to the partners. “Justice prevailed!” he exclaimed.

    “Appeal immediately,” was the reply.

  3. OPLAW-LCDR says:

    Maybe I’m missing something, but the underlying thrust of these provisions seems to assume that MILJUST will sweep these under the rug, so the civilians have to be allowed to deal with them. My experience from my trial days was exactly the opposite: easy cases were grabbed by the civilian prosecutor; the cases with questionable facts were turned down by the DA, so we had to deal with them. And – even then, we were not allowed to dismiss a case without a signed declination letter from the alleged victim.  Seems bassackwards. 
    Number 4 seems like a wonderful way to create a Brady violation too. 

  4. Dwight Sullivan says:

    I doubt that the drafters of this instruction believe that the civilians will prosecute when the military doesn’t.  Rather, I think this is a preemptive move to give the military a response to those who want to pass prosecutorial discretion from the military to the civilians. It makes the point that the civilians ALREADY have prosecutorial discretion over cases that the military chooses not to prosecute.  And when the inevitable future criticism comes about the military’s decision not to prosecute some particular allegation, the military can respond, “We asked the civilians prosecutorial authority to look at too — and they didn’t prosecute either.”

  5. soonergrunt says:

    You know, at some point, the problem of the fact that the people pushing all this stuff like the movie really aren’t interested in justice is going to have to be addressed in some form.

  6. rob klant says:

    Love how the reference to restricted reporting seems to have been tacked on, as an afterthought.  Maybe people are waking up to the fact that no individual – especially in the military – should have the right to decide to shield a perpertrator and expose others to the risk of future assault.

  7. stewie says:

    So an alleged victim should be forced to report? Because the alternative to restricted reporting for a lot of folks is going to be no report at all, which means no services for that person either. It isn’t likely to mean more unrestricted reporting.
    I concur with COL S that the intent here is to say, FYI civilians always have first-bite where they have joint/sole jurisdiction, and FEDS have potential input where sole Fed jurisdiction, etc. 

  8. ResIpsaLoquitur says:

    How in the heck would you prove that someone failed to report, anyway?  The only way I can envision it is to order the alleged rapist to testify in a dereliction-of-duty court-martial.  (“Excuse me, Sgt. Snuffy.  We’d need you testify that you raped Airman Jones.  We’ll give you testimonial immunity.  Really.  (Giggle.)”)

  9. rob klant says:

    Active-duty victims of all other crimes have a duty to report.  Is sexual assault somehow less deserving of immediate command action?
    As to the effect of reporting/not reporting on willingess to seek treatment, I haven’t seen it here in California.  All licensed providers have a mandatory duty to report, even those working in military treatment facilities. 

  10. AF Capt says:

    @rob klant: AD vics of other crimes have a duty to report?  I’m not familiar with the DoDI / Article requiring that but I’ll admit I’m relatively new (though I’ve seen the AFIs suggesting SF airmen are supposed to report general disorders and can see an argument for PRP personnel).  Do you have a cite?

  11. ResIpsaLoquitur says:

    I can’t fathom how a “failure to report one’s own rape” charge would make it to a jury, much less a convening authority who has to deal with a press conference by Susan Burke held outside his gate.  I can hear the defense closing argument now: “Airman Snuffy is the victim here.  She was abused, violated, shamed, and torn apart inside.  She was worried about being shamed.  Worried that she was responsible for what happened.  Worried that she would lose the trust and respect of her family, her peers, and her command.  And now the government wants to crucify her for being lost, scared, and confused.”
    I see that as a findings argument, not a sentencing one.

  12. rob klant says:

    At least in the Navy, there is a duty set forth under Article 1137, Navy Regulations: http://doni.daps.dla.mil/US%20Navy%20Regulations/Chapter%2011%20-%20General%20Regulations.pdf
    There’s an exception for self-incrimination, but none I know of for victims of crimes, apart from the “restricted” reporting option available for victims of sexual assault.
    Not that I would ever necessarily advocate prosecuting a victim for a violation, but RIL’s findings argument seems to boil down to the fact that the victim allowed her personal interests to interfere with her duties to the service, her command, her shipmates, and society at large.  Not so different than one would hear at the prosecution of any Article 92 violation.  
    Perfectly good E&M, but it wouldn’t be enough to move me to jury nullification. And, if her failure to report enabled a perpertrator to claim another victim, that would sound like perfectly good aggravation to me. 
    If victims can be said to have rights, then they — especially victims in the military — should also be taught to recognize that they have duties.   And, personally, I believe to do otherwise only reinforces the shame and isolation which perpetrators of sexual assault depend upon to continue their crimes undetected. 
     

  13. stewie says:

    Yeah good luck with enforcing that unenforceable provision under an Article 92 theory.  With respect, your position is a fairly extreme one. A rape victim has no duty to put herself (or himself) through the entire process out of a phantom duty to report or because it’s theoretically possible that the accused might do it to someone else.  Under your theory, if somone gets into a scuffle on a basketball court, and one player hits another, and the first one apologizes, and the second one accepts it, and doesn’t report the assault, then you’d go after the victim for not reporting it (and I assume the other players for not reporting it either).