Leaders Guide - Sexual Assault - Alleged Perpetrator of Sexual Assault

When an allegation of sexual assault surfaces, the commander will have responsibility to both the victim and perpetrator. Alleged perpetrators will find themselves in a precarious position and should seek legal counsel. In many ways the response of others will be scripted according to directives. The command has to respond to the alleged perpetrator in ways that will not cause feelings of being treated unfairly. An alleged perpetrator may feel prejudged and condemned before the truth is known. If the alleged perpetrator is popular among peers, any appearance of mistreatment by the unit may have an adverse affect towards the unit. A unit's esprit de corps, morale, and readiness may be greatly affected or polarized.

What to Look For

Depression.
Emotional withdrawal.
Mood change.
Lack of participation.
Anger.
A Marine may react to being suspected of a sexual assault in many ways. A leader should be aware of change in behavior for the suspected Marine. Any out of character conduct would be extremely telling in how well the Marine is dealing with the allegation.

What to Do

When an allegation of sexual assault surfaces a commander will have responsibility to both the victim and perpetrator. It is critical that the victim and perpetrator remain separated during the course of the investigation to prevent the possibility of re-victimization. In reference to the perpetrator, the commander should be aware of the possible mental stresses that the perpetrator may experience. A commander should strive to limit the amount of information circulating about the sexual assault to protect all parties. The following is a suggestion checklist for response:

Contacts with a service member suspected of an offense under the Uniform Code of Military Justice (UCMJ) involve rules and procedures that may be unique to the military. Therefore, before questioning the suspected service member or discussing the case with the service member, commanders and other command representatives should first contact their staff judge advocate for guidance.
Avoid discussing or questioning the sexual assault allegation with the accused service member, to the extent practicable, since doing so may jeopardize the criminal investigation. However, if questioning does occur, prior to questioning the accused service member, advise the service member suspected of committing a UCMJ offense of his/her rights under Article 31of the UCMJ, and right to defense counsel representation, before questioning him or her or before discussing the sexual assault allegations.
Notify the appropriate military criminal investigative organization as soon as possible after receiving a report of a sexual assault incident. [See Under Secretary of Defense (Personnel and Readiness) Memorandum “Increased Victim Support and a Better Accounting of Sexual Assault Cases”, November 22, 2004.]
Safeguard the rights of the accused and preserve the integrity of a full and complete investigation, to include limitations on any formal or informal investigative interviews or inquiries by personnel other than those assigned to the military criminal investigative organization conducting the investigation.
Strictly limit information, the facts of, and the details about the investigation to those who have a legitimate need to know.
Ensure procedures are in place for the accused service member to be informed about the investigative and legal processes that may be involved.
Ensure procedures are in place for the accused service member to be informed of available counseling support. As may be appropriate under the circumstances, refer the accused service member to available counseling groups and other services.
Emphasize that the accused is presumed innocent until proven guilty.
With the benefit of legal and investigative advice, determine the need for a verbal "no contact" order, or the issuance of a Military Protection Order (DD Form 2873), if the victim and the accused are assigned to the same unit, command, or location.
Monitor the well-being of the accused service member, particularly any indications of suicide potential, and ensure appropriate intervention occurs if indicated.

What to Avoid

Appearance of inaction.
Judgment prior to adjudication.
Premature Condemnation.
Group stereotyping.

The alleged perpetrator should receive command consideration when the command is addressing an allegation of sexual assault. However, the latter must be balanced against the victim's concerns, safety, and privacy. The command does not want to appear as being insensitive to either party in handling an allegation of sexual assault. A commander must take swift and direct actions upon receiving a report of a sexual assault. Commanders set the tone as to the appearance of what the command is doing to address the allegation of sexual assault. The victim's impressions on how things were handled by the command are directly related to what the command does and how swiftly the command responds to the victim's allegation. Similarly, to the extent possible, a commander should not prejudge or condemn the alleged perpetrator, nor should the unit be allowed to publicly voice their opinions.

What to Expect after Taking Action

Alleged perpetrator statement of innocence.
Alleged perpetrator desire to be treated fairly.
Alleged perpetrator desire for normality.
Outside agencies speaking with other members of the unit.
Outside agencies talking to the commander about his/her command environment (e.g. sexual assault)
This process can take months to years to complete. For case status, consult with the Sexual Assault Response Coordinator (SARC)
A commander can expect the alleged perpetrator to desire that nothing has changed as it concerns him/her. The commander must balance the wishes of the alleged perpetrator against the wishes of the victim as well as adhering to the appropriate directives. The commanders will have other agencies requesting access to the alleged perpetrator, the unit, and the commander.

Troubleshooting

Expecting Marines to be responsible for their actions and behaviors is paramount.
Follow up on forensic processing speeds up the investigation.
Refusal of polygraph does not stop the investigation.

Commanders can take an aggressive training approach to ensure that all Marines understand the Marine Corps policy on sexual assault. They can also follow the progress of the case to ensure it is handled in a timely manner. The commander will rely on the Sexual Assault Response Coordinator (SARC) to keep the command appraised of the status of the investigation. Legal can help the command determine if evidence is adequate to pursue formal charges. NCIS will provide the command with a recommendation whether or not charges need to be preferred.