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Ask the Lawyer: Aftermath of sexual assault often hinges on how it's reported

May. 26, 2011 - 11:23AM   |   Last Updated: May. 26, 2011 - 11:23AM  |  
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Lawyer Mathew B. Tully answers your questions.

Q. Sexual assault in the military is on the rise. Can you offer any general guidance for both victims and accused?

A. Sexual assault remains a major problem in the military, despite the Defense Department's years-long effort to control it.

The department reported in March that the military received 3,158 reports of sexual assault involving service members last year. Even though that marked a 2 percent decline in reports from the previous year, there remains room for improvement.

Service members who want to receive medical treatment or counseling but aren't sure whether they want to have authorities investigate the assault should contact their local sexual assault response coordinator, victim advocate or health care provider.

By taking this step, victims can make what is called a "restricted report," in which their personal information is kept confidential and no command investigation into the alleged offense is automatically triggered.

This restricted reporting option, which entered the regulations just a few years ago, was a landmark step forward in the evolution of the Defense Department's policy on how to deal with sexual assault. The intent is to ensure victims get immediate help, without having the weight of a command investigation on their shoulders at the same time.

But while restricted reporting affords the victim anonymity and time to get medical attention and consider what to do next, it also means the assailant will not be punished and a restraining order cannot be issued against the perpetrator.

Service members who want an investigation should report the incident through the chain of command, to a SARC, or to civilian or military law enforcement. With such "unrestricted reporting," the victim also could tell a health care provider about the offense and request the information be reported to authorities.

Article 120 of the Uniform Code of Military Justice covers a wide range of offenses regarding sexual assault, including rape, aggravated forms of sexual assault and sexual contact, abusive and wrongful sexual contact, indecent acts, indecent exposure and forcible pandering.

Any of these could result in a dishonorable or bad conduct discharge and total forfeitures, with confinement periods ranging from a life sentence for rape to a year for indecent exposure, according to the Manual for Courts-Martial.

Service members accused of sexual assault are typically ordered to have no contact with the alleged victim.

These are important orders with which service members must comply. If a service member does not follow such an order, not only can that person be charged with a violation of Article 92 of the UCMJ, but any communications or statements made to an alleged victim can be used against the service member in a subsequent court-martial.

A member's post-incident statements often can have detrimental effects on mounting a defense at court-martial or getting charges dropped.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm">Tully Rinckey PLLC.">Click here to email us. The information in this column is not intended as legal advice.

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