Legal Issues for the Sexual Assault Prevention and Response Program (SAPRP)

1. Legal Issues for the Sexual Assault Prevention and Response Program (SAPRP) Joint DoD/MEDCOM Health Care Law Symposium Mr. Charles Orck HQ MEDCOM OSJA 24 September 2014 UNCLASSIFIED

2. Previous DoD Reporting Policy • No confidentiality • Chaplain’s privilege • All others must report the assault • Medical treatment initiated an investigation • Law Enforcement notified immediately • Victim had no control over the release or management of their personal information

3. CHANGEDoD Restricted Reporting--Confidentiality • Fundamental change -- DoD policy implements Section 577(b) (5), NDAA FY 2005, P. L. 108-375 • Private conversations with restricted reporting sources are confidential and may not be revealed to anyone other than the SARC/VA without the permission of the victim • If commanders or law enforcement ask about the report, disclosures can only be made in accordance with exceptions to MRE 514 privilege

4. SAPR first responder knowledge of MRE 514 (Victim Advocate-Victim Privilege) MRE 514 - A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the victim and a victim advocate, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or supportive assistance to the victim.

5. Restricted vs. Unrestricted Reporting

6. Purpose of Victim’s Reporting Options • Ensure victims receive medical, counseling and advocacy services • Remove barriers • Perceived lack of privacy/confidentiality • Embarrassment/stigma • Fear of reprisal from offender • Lack of confidence in chain of command • Fear of repercussions regarding collateral misconduct • Belief that reporting one’s own victimization and seeking help go against the strength, honor, and courage inherent in military values • Concern about how report will affect their unit and the mission • Concern about how report may create lasting career and security clearance repercussions for themselves • Build victim’s trust in system to increase reporting

7. Unrestricted Reporting • DoD Policy favors unrestricted reporting • Command and investigative services notified • Accountability for offender(s) • Allows the victim to receive: • Medical treatment • Sexual Assault Forensic Examination (SAFE) • Victim Advocacy services • Counseling assistance • NEW - Expedited Transfer from their assigned command or base, or to a different location within their assigned command • Legal services: Victim Witness Assistance Program (VWAP) • NEW – If entitled to legal assistance may consult with a Special Victims’ Counsel (SVC)

8. Unrestricted Reporting Benefits • Ensures the widest range of rights and protections to the victim • Commander Support (Military Protective Orders, separation from offender, Expedited Transfer, deferred collateral misconduct, etc.) • Full investigation enhances opportunity to hold offender(s) accountable (crime scene, witness interviews, suspect interrogation) • May encourage other victims to come forward • Enhanced community safety

9. Unrestricted Reporting Limitations • Cannot change to Restricted Reporting • Victim may consider it too intrusive • Concern that others will find out • Investigation and court proceedings might be lengthy • May not be enough evidence to convict the offender(s)

10. Restricted Reporting • Allows a service member or adult family member (18+) who is sexually assaulted to disclose the incident to specifically identified personnel: • SARC Chaplains* • Victim Advocate(s) Legal Assistance Attorney* • Healthcare Provider(s) • Non-military, DoD contractor personnel OCONUS, and DoD civilian employees and family members OCONUS NOT eligible to make Restricted Report • DOES NOT TRIGGER THE INVESTIGATIVE PROCESS • Allows the victim to receive: • Medical Treatment • SAFE • SARC and SAPR VA services • Counseling Assistance • The Senior Commander is notified within 24 hours of non-identifying personal information

11. Benefits of Restricted Reporting • Victim receives appropriate medical treatment, advocacy, and counseling • Provides victim some time to consider options and to begin the healing process • Empowers victim to seek relevant information and support to make more informed decisions about participating in the criminal investigation • Victim controls the release and management of his/her personal information

12. Benefits of Restricted Reporting • Victim decides whether and when to move forward with initiating an investigation • Non-identifying personal information gives Senior Commander a more accurate picture of number of sexual assaults occurring on installation • Non-identifying victim and offender information: • gender • grade • component • status • location • type of assault

13. Sexual Assault Forensic Examination (SAFE) Under Restricted Reporting • Source - DoDI 6495.02, Enclosure 8 • Examination Optional – victim’s decides • Capability may be limited by state or local reporting requirements • MOUs [notify SARC, procedures for evidence] • Storage requirements (MP will store in evidence room) • Alpha-numeric Restricted Report Case Number (RRCN) • Chain of custody • Destruction • SM may request SARC keep DD Forms 2910 and 2911 for 50 years • NEW - FY13/FY14 NDAA Sexual Assault Document Retention – 50 years

14. Restricted Reporting Limitations • Victim’s assailant remains at large • Victim cannot receive a military protective order (MPO)/No Contact Order • Victim may continue to have contact with the assailant • Not eligible for expedited transfer from their assigned command or base • Evidence from the crime scene may be lost • Victim unable to discuss the assault with other service members • A victim’s communication with another person (e.g., roommate, friend, family member) does not, in and of itself, prevent the victim from later making a Restricted Report. Other person cannot be in chain of command or law enforcement. • Communications between the victim and a person other than the SARC, SAPR VA, or healthcare personnel are NOT confidential.

15. Exceptions to Confidentiality andRestricted Reporting • The victim consents in writing • Serious threat to health/safety of victim or others • Required for fitness for duty /disability retirement • Supervision by SARC or healthcare providers for coordination of victim treatment or services • As ordered by law • Disclose only as much information as is necessary. When in doubt, consult command legal advisor (i.e., SJA) • NOT an exception, but - 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

16. Non-Participating Victim • 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. • The victim should be informed by the SARC or SAPR VA that the investigation may continue regardless of whether the victim participates.

17. Non-Participating Victim • 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. • If a victim approaches a SARC and SAPR VA and begins to make a report, but leaves without signing the DD Form 2910 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. • DoDI 6490.02, Enclosure 4, paragraph 1c

18. Jurisdiction

19. Legislative Jurisdiction • Legislative jurisdiction determines who has authority to enact and enforce laws over land. • In general, three types • Exclusive – Federal authority only, state has no authority w/ exception to serve civil/criminal process • Concurrent – Federal and State exercise authority • Proprietary – State authority only • Legislative jurisdiction affects • Installation relationship with Civilian Police/Courts • When civilian police and courts can act

20. Important Because: • Will determine if MOU/MOAs are needed • Hospitals • Law enforcement • May limit the options of the victim if the jurisdiction requires reporting of sexual assaults to law enforcement (e.g., no restricted reporting) • Regardless of the Federal jurisdiction an MTF may enjoy (e.g., exclusive, concurrent, or proprietary) if the law of the state where the MTF is located requires reporting of sexual assaults to the state, then that law will apply.

21. State law or Federal law? • DoD Directive 6495.01, paragraph E3.1.8, provides exceptions to and limitations on restricted reporting.  • Subparagraph E3.1.8.5 provides the prohibition on disclosing covered communications to the persons or entities as indicated will be suspended if: • Military or civilian courts of competent jurisdiction when disclosure is ordered by a military, Federal, or State judge, or other officials or entities as required by a Federal or State statute or applicable U.S. international agreement. The SARC, assigned VA, and healthcare personnel will consult with the senior commander’s servicing legal office, in the same manner as other recipients of privileged information, to determine if the exception criteria apply and have a duty to disclose the otherwise protected information. Until those determinations are made, only non-identifying information should be disclosed.

22. State law or Federal law? (cont.) • All HCPs assigned to an MTF in a state that requires sexual assault reporting to the state will comply with that rule.  • In states that do not require reporting, all HCPs will follow that rule, even if they are licensed in a state that requires reporting of sexual assaults.   • Controlling factor is the state law where the HCP is located, not the state of licensure of the HCP.  • HCP will NOT report the matter to military criminal investigative organizations (MCIO), only to the state authorities required by statute. • Statutory language would have to be read carefully to see if reporting is required. 

23. State law or Federal law? (cont.) • Example A: Doctor Alveoli is licensed to practice in California. Doctor Bubo is licensed to practice in Texas. Doctor Cuspid is licensed to practice in Massachusetts. • All doctors are stationed at Fort Irwin, California. A victim of sexual assault with injury is treated at the Fort Irwin MTF. • The state of California requires HCPs to report sexual assaults where the victim is suffering from any wound or other physical injury; therefore, the treating HCPs are required to report the sexual assault to the designated law enforcement agency in accordance with state law but not to MCIOs or other military law enforcement. • The victim must be advised that some or all of DoD’s restricted reporting protections may be limited by California law.

24. State law or Federal law? (cont.) • Example B: Doctor Alveoli is licensed to practice in California. Doctor Bubo is licensed to practice in Texas. Doctor Cuspid is licensed to practice in Massachusetts. • All doctors are stationed at Fort Bliss, Texas. A victim of sexual assault with accompanying injury is treated at the Fort Bliss MTF. • The states of California and Massachusetts require the reporting of sexual assaults by HCPs; the state of Texas does not (absent an accompanying gunshot wound). • None of the HCPs is required to report the sexual assault.

25. Who is a Healthcare Provider (HCP) for the SAPRP?

26. Who is a HCP for the SAPRP? • Employed or assigned as healthcare professionals, or credentialed to provide health care services, at an MTF or DTF, or provide such care at a deployed location or in an official capacity • Includes military personnel, DoD civilian employees, and DoD contractors who provide health care at an occupational health clinic for DoD civilian employees or DoD contractor personnel. (See DoDD 6495.01, E2.1.6.) • Change 1 to DoDD 6495.01 added paragraph E2.1.5, Healthcare Personnel (HCP) • includes all healthcare providers • also includes persons assisting or otherwise supporting healthcare providers in providing healthcare services (e.g., administrative personnel assigned to MTF)

27. Who is a HCP? Why is this important? • In healthcare environment, if a victim discloses a sexual assault to anyone who is not an HCP, confidentiality may be waived • Change 1 to DoDD 6495.01 eliminates possible confusion for victim as to whether a given individual in the MTF can receive a restricted report • Restricted reporting should be preserved to the maximum extent possible by HCPs and healthcare personnel who come in contact with the victim • Non-healthcare providers not performing a healthcare function in an MTF (e.g., other patients, delivery personnel, etc.) are NOT COVERED and communication with them about the victim’s sexual assault may preclude the victim’s ability to make a restricted report • Any questions on the application of the presumption or the victim’s intent should be coordinated immediately with the servicing OSJA

28. What is Covered? • Covered communications include oral, written, or electronic communications of personally identifiable information concerning a sexual assault victim or alleged assailant provided by the victim to the HCP related to his or her sexual assault. (See DoDD 6495.01, E2.1.3.)

29. 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 for in DoDI 6490.02. • If an independent investigation is initiated, SARCs, SAPR VAs, and healthcare personnel are prevented from disclosing confidential communications under Restricted Reporting, unless an exception applies. • DoDI 6495.02, Enclosure 4, paragraph 1d / MRE 514.

30. Potpourri

31. Sexual Assault Nurse Examiners FY 2014 NDAA, Section 1725(b): • Requires at least one Sexual Assault Nurse Examiner (SANE) assigned to every MTF with 24/7 ED • MEDCOM at 100% • MEDCOM has 118 qualified Sexual Assault Medical Forensic Examiners (SAMFE) supporting 34 MTFs • Other MTFs w/o EDs must make available SAFE services • Training and certification requirements established by SecDef • DoDI 6495.02, Enclosure 7, DoJ “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” • MEDCOM SAMFE Training is 80 hours; Complies with DoJ Protocol; occurs quarterly.

32. MPO / No Contact Order • Purpose of both – To protect the victim • Military Protective Order (DD Form 2873) • Issued by offender’s commander • Not available for restricted reports • Can be used to supplement civilian protective orders • MPOs are enforceable under Uniform Code of Military Justice (UCMJ) • Military “No Contact Order” – may be oral or written

33. Civilian Protection Orders • No Contact Orders issued by Criminal Courts • Restraining Orders issued by Civil Courts • Enforceable off/on base by Federal law • Victim must request and appear before judge • 3 types: • Emergency • Temporary • Permanent

34. Collateral Misconduct • A victim’s fear of punishment can be a significant barrier to reporting • Many sexual assaults involve victim misconduct • Prioritizes level of offenses • Commanders may delay disciplinary actions concerning victim, see AR 600-20, paragraphs 8-5o(3) and (24): • (3) Ensure that victims of sexual assault receive sensitive care and support and are not re-victimized as a result of reporting the incident. • (24) Determine, in a timely manner, how to best dispose of alleged victim collateral misconduct, to include making the decision to defer the disciplinary actions regarding such misconduct until after the final disposition of the sexual assault case. Commanders and supervisors should take into account the trauma to the victim and respond appropriately so as to encourage reporting of sexual assault and the continued cooperation of the victim.

35. Independent Investigations • Investigations of Restricted Reporting cases may occur if: • Commander receives information from a source independent of the restricted reporting avenues • Victim discloses circumstances of the sexual assault to someone other than the VA, SARC, Chaplain, or HCP • 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. • The SARC, VA and healthcare provider will not disclose covered communications unless the victim authorizes the disclosure in writing or an exception applies. DoDI 6495.02, Enclosure 4, 1d / MRE 514.

36. Reporting Sexual Assaults in MEDCOM • For unrestricted reports, MTFs are required to report to TSG through the CCIR Process and FRAGO 10 to Operations Order 13-52 (MEDCOM Sexual Assault Prevention Plan) • Care must be taken to ensure restricted reporting is not compromised • Sexual Harassment/Assault Reporting Policy in staffing to require all AD, civilian personnel, and contractor personnel to report.

37. Improper Disclosure of Covered Communications • Improper disclosure of covered communications or medical information, and other provisions of the confidentiality policy is prohibited • Violations may result in: • Discipline under UCMJ • Other adverse personnel or administrative action

38. HIPAA No Impediment • MTF may provide the minimum necessary PHI to the SARC • Authority to provide PHI to the SARC under HIPAA’s “required by law” provision (DoD 6025.18-R, para C7.1.1) • Deputy Secretary of Defense Memorandum, "Confidentiality Policy for Victims of Sexual Assault (JTF-SAPR-009)," March 18, 2005, • DoD Directive 6495.01, Enclosure 3, paragraph E3.1.6.2.1. • AR 600-20, Appendix H, paragraph H-4a(6)

39. Payment of Sexual Assault Forensic Examinations • Violence Against Women Act (VAWA)requires a sexual assault victim to have access to a forensic exam free of charge. • FY 2007 NDAA directed the SecDef to establish a benefit for forensic examinations in Civilian Health Care (CHC) facilities following a sexual assault or domestic violence for eligible beneficiaries • All beneficiaries are covered if they are examined in a MTF • Prior law: forensic examinations were not covered for beneficiaries in CHC facilities because TRICARE could only pay for medically or psychologically necessary services or supplies • The purpose of the SAFE is primarily for preservation of evidence for use by the justice system

40. Payment of Sexual Assault Forensic Examinations CURRENT LAW: • TRICARE states the forensic examination process serves a dual purpose: • to address the medical needs of the victim; and • to collect and preserve forensic evidence for use in any future criminal investigation and/or prosecution • Congress acknowledged this dual purpose by establishing this benefit to allow CHC facilities to receive reimbursement for these examinations • Benefit is consistent with the services that are authorized in medical MTFs for all beneficiaries who are victims of sexual assault or domestic violence TRICARE POLICY MANUAL 6010.54-M, CHAPTER 7, SECTION 26.1

41. Payment of Sexual Assault Forensic Examinations • Civilians injured in alleged felonious assaults on Army installations • When required to complete a criminal investigation, the SecArmy has given commanders of Army MTFs discretionary authority to provide examination and initial treatment without charge to a civilian injured in an alleged felonious assault (for example, alleged rape) occurring on an Army installation. AR 40-400, paragraph 3–60. • New DoDI 6495.02 specifically includes SAFE as part of emergency treatment. Updated OPORD and MEDCOM Reg 40-36 will include. • There is no authority to provide care for civilians in the private sector

42. Special Victim Counsel (SVC) Program • SVC responsibilities may include: • Advise victims in collateral civil issues arising from the alleged offense(s) • Advocate victims' interests with the trial counsel on disposition options • Refer to Trial Defense Services, as necessary • Advise victims on victim impact statement • Accompany victims to all pre-trial interviews, hearings, and court-martial proceedings • Appear in court on discovery motions regarding medical records • Appear in court on motions/court appearances/appeals on MRE 412 and 513 issues • Assist victims in post-trial submissions • Provide traditional Legal Assistance services

43. VICTIM WITNESS ASSISTANCE PROGRAMS • DoDD 1030.1 and DoDI 1030.2 includes a Bill of Rights which is similar to the Federal Crime Victims' Bill of Rights. • DoD officials are responsible for ensuring that victims of military crimes enjoy these rights: • Right to be treated with fairness and respect • Right to be reasonably protected from the offender • Right to be notified of court-martial proceedings • Right to be present at court-martial proceedings • Right to confer with the Government attorney • Right to available restitution • Right to know outcome of trial & release from confinement • See also, AR 27–10, Chapter 17.

44. Bill of Rights • Patient Bill of Rights • DOD Directive 6000.14 Patient Bill of Rights and Responsibilities in the Military Health System (MHS) • Crime Victims Bill of Rights – Extended to UCMJ/NDAA 2014 • Provisions in common to both: • Crime – The right to be treated with fairness and with respect for the victim’s dignity and privacy • Patient – Patients have the right to considerate and respectful care, with recognition of personal dignity, psychosocial, spiritual, and cultural values and belief systems. • Crime – Right to be reasonably protected from the accused. • Patient - Patients have the right to care and treatment in a safe environment.

45. Crime Victim Compensation • Crime victim compensation • Victims of violent crime may suffer financial stress that is as devastating as their physical injuries and emotional trauma. • Crime victim compensation is a direct reimbursement to or on behalf of a crime victim for a wide variety of crime-related expenses, including medical costs, funeral and burial costs, expenses for mental health counseling, and lost wages or loss of support. • Every state administers a crime victim compensation program that provides crucial financial assistance to victims of both federal and state crimes. • Locate crime compensation in local area • Consult with legal assistance officer, SVC

46. Crime Victim Compensation • Judicial Proceedings since 2012 Panel. 79 Fed. Reg. 36479. Among the duties of that committee is to: • Conduct an assessment of the adequacy of the provision of compensation and restitution for victims of offenses under the UCMJ, and develop recommendations on expanding such compensation and restitution, including consideration of the options as follows: • i. Providing the forfeited wages of incarcerated members of the Armed Forces to victims of offenses as compensation. • ii. Including bodily harm among the injuries meriting compensation for redress under 10 U.S.C. 939 (article 139 of the UCMJ). • iii. Requiring restitution by members of the Armed Forces to victims of their offenses upon the direction of a court-martial.

47. Questions?

48. References 1. Office of the Secretary of Defense Memorandum, Subject: NDAA 2006, Section 596, "Improvement to Department of Defense Capacity to Respond to Sexual Assault Affecting Members of the Army Forces" -- Reporting Requirements, 6 Jan 2006 2. DoD Directive 6495.01, Subject: Sexual Assault Prevention and Response (SAPR) Program, 23 January 2012, Change 1, 30 April 2013 3. DoD Instruction 6495.02, Subject: Sexual Assault Prevention and Response Program Procedures, 28 March 2013 4. DoD Instruction 5505.18, Subject: Investigation of Adult Sexual Assault in the Department of Defense, January 25, 2013, Incorporating Change 1, May 1, 2013 5. AR 27-10, Military Justice, 3 October 2011 6. AR 600-20, Army Command Policy, 18 MAR 2008, RAR 20 Sept 2012 7. MEDCOM Regulation 40-36, Medical Facility Management of Sexual Assault, 21 Jan 2009

49. SHARP References AR 600-20, Army Command Policy, 18 MAR 2008, RAR 20 Sept 2012 AR 350-1, Army Training and Leader Development, 18 Dec 2009 Department of the Army, Subject: Army Policy on Harassment, 21 Jul 2008 ALARACT 075-2009, Subject: Sexual Harassment / Assault Response and Prevention,19 Mar 2009 MEDCOM Operations Order 13-52 (MEDCOM Sexual Assault Prevention Plan) with Fragmentary Orders.