One of the toughest hills to climb in the military’s work to tackle its sexual assault problem is that so few survivors report their attacks, often for fear or retaliation or other negative consequences. Now, as part of Defense Department policy, troops who were drinking underage, out past curfew or fraternizing at the time of an assault don’t have to worry about being charged if they come forward.
The Safe-to-Report Policy, mandated by Congress in the 2021 National Defense Authorization Act, requires commanders to disregard any “minor” collateral misconduct a survivor might have committed in the context of his or her assault.
“The Safe-to-Report Policy will allow us to build on the support we strive to provide to victims of sexual assault, while ensuring due process for the accused and good order and discipline for the Force,” Gil Cisneros, Defense Under Secretary for Personnel and Readiness, wrote in a memo signed Oct. 25.
Examples of minor infractions include underage drinking, an unprofessional relationship with the accused or violation of other lawful orders, which can include curfews, off-limits businesses and housing policies.
The services must also take into account aggravating circumstances when deciding whether an infraction is minor. If a survivor’s actions interfere with a military mission or objective; threaten another’s health or safety; or result in significant property damage, commanders are able to prosecute them.
There are also a handful of mitigating circumstances that could push a minor infraction into a no-prosecute situation. Those include age and military experience; whether the suspect is in a position of power over the survivor; whether the suspect stalked, harassed or otherwise pressured the survivor into sexual behavior; whether the command would have known about any collateral misconduct if not for the survivor reporting their assault; and whether any misconduct occurred after an assault, suggesting it is a reaction to trauma.
If, using these guidelines, a commander finds that any collateral misconduct is not minor, he or she retains the ability to charge the service member. If the misconduct is indeed minor, it won’t be prosecuted, but commanders can still refer survivors to substance abuse or behavioral health screening if there is a concern.
The new policy drops as the Pentagon is working to implement dozens of recommendations from an independent commission, which announced its findings in July. DoD’s implementation timeline gives up to eight years to complete changes.
One of those changes is to take prosecution of sexual assaults out of a commander’s purview, which will require a law change. If that legislation interferes with Safe-to-Report, according to the memo, the Joint Service Committee on Military Justice will be in charge of revising the policy to keep it current.
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members.