By: Allison Walsh, CLASV Student Advisor Spring 2014

Sexual assault is a serious crime that has recently pervaded the media, particularly in regard to the military services.  “The Pentagon estimates that 26,000 troops were assaulted or raped [in 2012].  But only a fraction of them, about 3,300, filed reports with military police or prosecutors in that time period.”[1]  The total number of active duty military personnel in December 2012 was 1,385,055.  Taking just the Active component alone, this would be approximately 1.88% of the military are victims of sexual assault or rape.[2]  While this may seem like a small percentage of victims, the crime of sexual assault affects their life, their participation in society, and their relationships, such that the people close to them become affected as well.  Within the military, these effects are particularly important because the organization is tight-knit and responsible to their fellow wingmen, soldiers, sailors, and marines.  The military has had difficulties in the laws and regulations regarding sexual assault.  Indeed, it still struggles in areas such as veterans benefits[3] and legal reform.[4]  However, the military social awareness and training on the topic of sexual assault and sexual harassment has changed dramatically, as demonstrated through the press, White House responses, and changing policies regarding sexual crimes within the Department of Defense itself.[5]

This blog will not only provide legal definitions of these crimes, but also several resources and recourses that victim, their coworkers, and their friends and families can utilize to empower the survivor of the unwanted sexual contact or harassment and help educate others to prevent sexual assault or harassment. If you are a victim or a concerned friend, family member, or coworker, please feel free to use the sections for information and access to resources.  The sections are as follows: (A) Definitions; (B) Reporting Sexual Offenses: Restricted vs. Unrestricted Reporting and Statutes of Limitations on Sexual Crimes; (C) The Department of Veterans Affairs: Free Counseling and Disability Compensation; (D) Giving Sexual Assault Survivors a Voice: Resources, Helplines, and Agencies.

A. Definitions

Under the Uniform Code of Military Justice (UCMJ), sexual assault is defined as “any person…who commits a sexual act upon another person by (A) threatening or placing that other person in fear; (B) causing bodily harm to that other person; (C) making a fraudulent representation that the sexual act serves a professional purpose; or (D) inducing a belief by any artifice, pretense, or concealment that the person is another person; or [who] commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; or [who] commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to (A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or (B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person.”[6]  The UCMJ defines rape separately.

Sexual assault is connected to the consent that a person gives for sexual conduct.  The UCMJ defines consent as “a freely given agreement…by a competent person.”[7]  A lack of consenting words (saying yes) or conduct means there is no consent.[8]  A lack of verbal or physical resistance or a submission to the sexual conduct does not constitute consent.[9]  Sleeping, unconscious, or incompetent people cannot give consent; likewise, a previous or current relationship with that person does not constitute consent.[10]  Consent is never produced from fear, force, or bodily harm.[11]  Consent must be given for every sexual act.

The federal law pertaining to veterans benefits defines sexual harassment as “repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.”[12]  The Department of Veterans Affairs (VA) further defines a result of sexual assault as “Military Sexual Trauma,” which is “psychological trauma…resulting from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty or active duty for training.”[13]

These definitions are important to know because of the legal recourse and medical assistance that a survivor can access.  The legal rights that victims have access to are, notably, “the right to be reasonably protected from the offender, the right to be notified of and be present at court-martial proceedings, the right to confer with the Government attorney (prosecutor), and the right to available restitution.”[14]  Services for victims include “law enforcement personnel, criminal investigators, chaplains, family advocacy personnel, family service center personnel, equal opportunity personnel, judge advocates, and unit commanding officers.”[15]

B. Reporting Sexual Offenses: Restricted vs. Unrestricted Reporting and Statutes of Limitations on Sexual Crimes

The amount of resources and options can seem overwhelming to a victim of such a traumatic experience.  The military has implemented two different types of reporting to help ease the discomfort or nervousness a survivor may feel in this situation.  Restricted reporting “is recommended for victims of sexual assault who wish to confidentially disclose the crime to specifically identified individuals and receive medical treatment and counseling without triggering the official investigative process.”[16]  These specific individuals are a Sexual Assault Response Coordinator (SARC), Victim Advocate, or a healthcare provider.  Chaplains are not a part of this restricted reporting, but the communication “may [emphasis added] be protected under the Military Rules of Evidence or applicable statutes and regulations.”[17]  Unrestricted reporting “is recommended for victims of sexual assault who desire medical treatment, counseling, and an official investigation of the crime.”[18]  The victim should report the crime to the chain of command, law enforcement, the SARC (which would specifically request for unrestricted reporting), or healthcare providers that are requested to notify law enforcement.[19]  A Victim Advocate will routinely check on the survivor as needed to ensure continued victim support.[20]

For more detailed information on restricted and unrestricted reporting, the processes involved, and who is eligible for restricted and unrestricted reporting, please visit: http://www.preventsexualassault.army.mil/policy_restricted_unrestricted_reporting.cfm.

The National Defense Authorization Act for Fiscal Year 2014 (PL 113-66 (2013)) eliminated the statute of limitations on trial by court-martial for additional offenses involving sex crimes.  Sexual assault crimes currently do not have a statute of limitations, which would limit when a prosecutor could pursue a court-martial action against a perpetrator.

C.  The Department of Veterans Affairs: Free Counseling and Disability Compensation

The Department of Veterans Affairs recognizes that servicemembers, men and women alike, can experience sexual misconduct during their service that results military sexual trauma.[21]  Military sexual trauma, as explained previously, is the psychological result of sexual trauma.  Several indicators are strong emotions, depression, trouble sleeping, difficulty with attention, concentration, and memory, problems with alcohol or other drugs, difficulties in relationships, and physical health problems.[22]   In addition to seeking support from a doctor or counselor, there are some basic lifestyle changes for the individual seeking help for military sexual trauma, such as recognizing triggers, taking up a new hobby, and talking to others.[23]  A full list of suggestions can be found here: http://maketheconnection.net/conditions/military-sexual-trauma#3.  Anonymous health screenings can provide the initial step in assessing whether you are experiencing PTSD or military sexual trauma, and are available here: https://www.militarymentalhealth.org/PTSDScreen.

The VA provides free services for those who have military sexual trauma, which do not require any VA disability rating or a service connection to receive these services.  The victim did not have to report the incidents when they happened or have other documentation that they occurred.  There is also no time limit or salary cap for care eligibility.[24]

A veteran can receive disability compensation from the VA for post-traumatic stress disorder or other mental health diagnoses resulting from military sexual trauma.  The VA recognizes that many sexual assaults do not have immediate reporting or evidence; therefore, the VA assessment includes, but is not limited to, the following factors: “records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; statements form family members, roommates, fellow Servicemembers, clergy members, or counselors; request for transfer to another military duty assignment; deterioration in work performance; episodes of depression, panic attacks, or anxiety without an identifiable cause…”[25]  More factors and access to a disability compensation application can be found here: http://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/MST.pdf.

D.  Giving Sexual Assault Survivors a Voice: Resources, Helplines, and Agencies

If you, a coworker, or a loved one has experienced sexual assault or harassment, the following resources for military and veterans are listed below.  Sexual assault does not just affect victims; it affects their relationships with others, including those closest to the survivors.  These resources are for veterans, their friends and families, and their coworkers.

• DoD Safe Helpline allows for anonymous support for sexual assault survivors in the military.  It also provides information on what to do if you or someone you know has been sexually assaulted.  https://www.safehelpline.org/
• Rape, Abuse & Incest National Network (RAINN) provides a National Sexual Assault Hotline, which connects you to the nearest rape crisis center, at 1-800-656-HOPE (4673).  It also provides information for victims and their friends and family at its interactive website: http://www.rainn.org/.
• Military One Source compiled each service branch’s sexual assault prevention and response centers can be found here: http://www.militaryonesource.mil/sexual-assault.
• The National Resource Directory is dedicated to connecting Wounded Warriors, Servicemembers, Veterans, their families, and caregivers with other supporting organizations.  Their compilation of service branch programs, and programs for National Guard and Reserve, and programs for women can be accessed here: https://www.nrd.gov/health/sexual_assault.
• Make the Connection. For an overview of military sexual trauma, resources, and an explanation of treatment available and VA services, please visit: http://maketheconnection.net/conditions/military-sexual-trauma#3.
• Department of Veterans Affairs. The VA website for military sexual trauma is: http://www.mentalhealth.va.gov/msthome.asp
• Veterans Centers. Find the Veteran’s Center closest to you: http://www2.va.gov/directory/guide/home.asp?isflash=1
• National Sexual Violence Resource Center. More national organizations have been compiled by the National Sexual Violence Resource Center for victims and survivor support organizations: http://www.nsvrc.org/organizations
• Department of Justice. Sexual assault resources from the Department of Justice: http://www.ovw.usdoj.gov/sexassault.htm
• Colleges and Universities. Many colleges and universities provide students with sexual assault hotlines and resources, usually free of charge.  An example of this would be Campus Advocates Respond and Educate (CARE) to Stop Violence at University of Maryland: http://www.health.umd.edu/care.

 

The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia, and are not to be construed as legal advice.  The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. An attorney should be contacted for advice on specific legal issues.