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[Federal Register Volume 77, Number 18 (Friday, January 27, 2012)]
[Rules and Regulations]
[Pages 4239-4247]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1785]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 103

[DoD-2008-OS-0124; 0790-AI37]

Sexual Assault Prevention and Response (SAPR) Program

AGENCY: Department of Defense.

ACTION: Interim final rule.

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SUMMARY: This part implements Department of Defense (DoD) policy and 
assigns responsibilities for the SAPR Program on prevention, response, 
and oversight to sexual assault. It is DoD policy to establish a 
culture free of sexual assault by providing an environment of 
prevention, education and training, response capability, victim 
support, reporting procedures, and accountability that enhances the 
safety and well being of all persons covered by the regulation.

DATES: Effective: This rule is effective January 27, 2012. Comments 
must be received by March 27, 2012.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Diana Rangoussis, Senior Policy 
Advisor, Sexual Assault Prevention and Response Office (SAPRO), (703) 
696-9422.

SUPPLEMENTARY INFORMATION: This rule is being published as an interim 
final rule to:
    a. Implement DoD policy and assign responsibilities for the SAPR 
Program on prevention, response, and oversight to sexual assault.
    b. Incorporate all applicable congressional mandates and all 
applicable recommendations from the Inspector General of the Department 
of Defense (IG, DoD), Government Accountability Office, and Defense 
Task Force on Sexual Assault in the Military Services, to include the 
new Defense Sexual Assault Incident Database (DSAID) that will give the 
Department a clear view of the number of incidents at the installation 
level;
    c. Address vigorous congressional and public interest by publishing 
a revised and comprehensive DoD policy on the prevention of and 
response to sexual assaults involving members of the U.S. Armed Forces, 
which affords victims critical and unprecedented additional protections 
under this part; and
    d. Provide field guidance and training requirements to the Military 
Components to ensure individual resilience and unit readiness in the 
U.S. Armed Forces, which may be degraded by sexual assault, and thus 
enable

[[Page 4240]]

Service member victims to become fully mission capable and engaged once 
again.
    Additionally, until this rule is published as an interim final 
rule, adult spouses and other military dependents cannot elect 
Restricted Reporting or receive the services of a Sexual Assault 
Response Coordinator (SARC) or a Sexual Assault Prevention and Response 
VictimAdvocate (SAPR VA). Moreover, the rule and corresponding DoD 
policy mandate that all sexual assault victims are treated as emergency 
cases, regardless of visible physical injuries. Lastly, WHEN the Rule 
and corresponding DOD policy are published, DoD civilians outside of 
the continental United States (OCONUS) and DoD contractors (who are 
U.S. citizens and authorized to accompany U.S. military) will now be 
assured to receive emergency care for sexual assault (even when 
physical injuries are not present) and the services of a SARC and a 
SAPR VA during the emergency care.
    This rule:
    a. Incorporates all applicable congressional mandates from Section 
113 of Title 10, United States Code (U.S.C.), and Public Laws 109-364, 
109-163, 108-375, 106-65, 110-417, and 111-84; and all applicable 
recommendations from the IG, DoD; Government Accountability Office; and 
Defense Task Force on Sexual Assault in the Military Services;
    b. Establishes the creation, implementation, maintenance, and 
function of DSAID, an integrated database that will meet congressional 
reporting requirements, support Military Service SAPR Program 
management, and inform DoD SAPRO oversight activities;
    c. Increases the scope of applicability of this part by expanding 
the categories of persons covered by this part to include:
    1. National Guard and Reserve Component members who are sexually 
assaulted when performing active service, as defined in section 
101(d)(3) of Title 10, U.S.C., and inactive duty training. Refer to DoD 
Instruction (DoDI) 6495.02 for additional SAPR and medical services 
provided to such personnel and eligibility criteria for Restricted 
Reporting;
    2. Military dependents 18 years of age and older who are eligible 
for treatment in the military healthcare system, at installations in 
the continental United States (CONUS) and outside of the continental 
United States (OCONUS), and who were victims of sexual assault 
perpetrated by someone other than a spouse or intimate partner. (The 
Family Advocacy Program (FAP), pursuant to DoD Directive (DoDD) 6400.1, 
covers military dependent sexual assault victims who are assaulted by a 
spouse or intimate partner and military dependent sexual assault 
victims who are 17 years of age and younger);
    3. The following non-military personnel who are only eligible for 
limited medical services in the form of emergency care (see Sec.  103.3 
(g) of this rule), unless otherwise eligible to receive treatment in a 
military medical treatment facility. They will also be offered the 
limited SAPR services of a Sexual Assault Response Coordinator (SARC) 
and a SAPR Victim Advocate (VA) while undergoing emergency care OCONUS. 
Refer to DoDI 6495.02 for any additional SAPR and medical services 
provided. These limited medical and SAPR services shall be provided to:
    i. DoD civilian employees and their family dependents 18 years of 
age and older when they are stationed or performing duties OCONUS and 
eligible for treatment in the military healthcare system at military 
installations or facilities OCONUS. Refer to DoDI 6495.02 for reporting 
options available to DoD civilians and their family dependents 18 years 
of age and older;
    ii. U.S. citizen DoD contractor personnel when they are authorized 
to accompany the Armed Forces in a contingency operation OCONUS and 
their U.S. citizen employees per DoDI 3020.41. Refer to DoDI 6495.02 
for reporting options available to DoD contractors; and
    4. Service members who are on active duty but were victims of 
sexual assault prior to enlistment or commissioning. They are eligible 
to receive full SAPR services and either reporting option. The focus of 
this part and DoDI 6495.02 is on the victim of sexual assault. The DoD 
shall provide support to an active duty Service member regardless of 
when or where the sexual assault took place.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that this rule is not a significant 
regulatory action. The rule does not:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that this rule does not contain a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule provides SAPR Program guidance only.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    Section 103.5(a)(9) of this interim final rule contains information 
collection requirements. DoD has submitted the following proposal to 
the Office of Management and Budget (OMB) under the provisions of the 
Paperwork Reduction Act (44 U.S.C. Chapter 35). Comments are invited 
on: a. Whether the proposed collection of information is necessary for 
the proper performance of the functions of DoD, including whether the 
information will have practical utility;
    b. The accuracy of the estimate of the burden of the proposed 
information collection;
    c. Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    d. Ways to minimize the burden of the information collection on 
respondents, including the use of automated collection techniques or 
other forms of information technology.
    Title: DSAID.
    Type of Request: New.
    Number of Respondents: 3,200.
    Responses Per Respondent: 1.
    Annual Responses: 3,200.
    Average Burden Per Response: 60 minutes.
    Annual Burden Hours: 1 hour.
    Needs and Uses: A DoD database that captures uniform data provided 
by the Military Services and maintains all sexual assault data 
collected by the Military Services. This database shall be a 
centralized, case-level database for the uniform collection of data 
regarding

[[Page 4241]]

incidence of sexual assaults involving persons covered by this part and 
DoDI 6495.02. DSAID will include information when available, or when 
not limited by Restricted Reporting, or otherwise prohibited by law, 
about the nature of the assault, the victim, the offender, and the 
disposition of reports associated with the assault. Information in the 
DSAID will be used to respond to congressional reporting requirements, 
support Military Service SAPR Program management, and inform DoD SAPRO 
oversight activities.
    Affected Public: Federal Government; Individuals or Households; 
Business or Other For-Profit; Not-For-Profit Institutions; Farms; 
State, Local or Tribal Government.
    Frequency: On occasion.
    Respondent's Obligation: Voluntary.
    OMB Desk Officer:
    Written comments and recommendations on the proposed information 
collection should be sent to Ms. Jasmeet Seehra at the OMB, DoD Desk 
Officer, Room 10102, New Executive Office Building, Washington, DC 
20503, with a copy to Ms. Darlene Sullivan at the DoD SAPRO, Oversight 
Program Manager, 1401 Wilson Boulevard, Suite 402, Arlington, VA 22209. 
Comments can be received from 30 to 60 days after the date of this 
notice, but comments to OMB will be most useful if received by OMB 
within 30 days after the date of this notice.
    You may also submit comments, identified by docket number and 
title, by the following method: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
name, docket number and title for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.
    To request more information on this proposed information collection 
or to obtain a copy of the proposal and associated collection 
instruments, please write to DoD SAPRO, 1401 Wilson Boulevard, Suite 
402, Arlington, VA 22209, ATTN: Ms. Darlene Sullivan, (703) 696-9422.

Executive Order 13132, ``Federalism''

    It has been certified that this rule does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    1. The States;
    2. The relationship between the National Government and the States; 
or
    3. The distribution of power and responsibilities among the various 
levels of Government.

List of Subjects in 32 CFR Part 103

    Crime, Health, Military personnel.

    Accordingly, 32 CFR Part 103 is added to read as follows:

PART 103--SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM

Sec.
103.1 Purpose.
103.2 Applicability.
103.3 Definitions.
103.4 Policy.
103.5 Responsibilities.

    Authority:  10 U.S.C. 113; and Public Laws 109-364, 109-163, 
108-375, 106-65, 110-417, and 111-84.

Sec.  103.1  Purpose.

    (a) This part reissues DoDD 6495.01, pursuant to section 113 of 
Title 10, U.S.C., to implement DoD policy and assign responsibilities 
for the SAPR Program on prevention, response, and oversight to sexual 
assault according to the guidance in:
    (1) This part;
    (2) DoDD 6495.01, ``Sexual Assault Prevention and Response (SAPR) 
Program,'' October 6, 2005 (hereby cancelled);
    (3) Sections 101(d)(3) and 113, chapter 47,\1\ and chapter 80 of 
title 10, U.S.C.;
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    \1\ Also known as ``The Uniform Code of Military Justice.''
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    (4) DoDI 6495.02, ``Sexual Assault Prevention and Response Program 
Procedures,'' November 13, 2008;
    (5) DoDD 6400.1, ``Family Advocacy Program (FAP),'' August 23, 
2004;
    (6) DoDI 6400.06, ``Domestic Abuse Involving DoD Military and 
Certain Affiliated Personnel,'' August 21, 2007, or the most recent 
edition;
    (7) U.S. Department of Defense, ``Manual for Courts-Martial,'' 
2008;
    (8) DoDD 7050.06, ``Military Whistleblower Protection,'' July 2007;
    (9) U.S. Department of Justice, Office on Violence Against Women, 
``A National Protocol for Sexual Assault Medical Forensic Examinations, 
Adults/Adolescents,'' September 2004, or the most recent edition;
    (10) DoDD 5400.11, ``DoD Privacy Program,'' May 8, 2007;
    (11) DoD 6025.18-R, ``DoD Health Information Privacy Regulation,'' 
January 24, 2003;
    (12) DoD 8910.1-M, ``DoD Procedures for Management of Information 
Requirements,'' June 30, 1998;
    (13) DoDD 5124.02, ``Under Secretary of Defense for Personnel and 
Readiness (USD(P&R)),'' June 23, 2008;
    (14) U.S. Department of Defense paper, ``The Department of Defense 
Sexual Assault Prevention Strategy,'' September 30, 2008;
    (15) Section 577 of Public Law 108-375, ``Ronald Reagan National 
Defense Authorization Act for Fiscal Year 2005,'' October 28, 2004;
    (16) Sections 561, 562, and 563 of Public Law 110-417, ``The Duncan 
Hunter National Defense Authorization Act for Fiscal Year 2009,'' 
October 14, 2008;
    (17) Section 567(c) of Public Law 111-84, ``The National Defense 
Authorization Act for Fiscal Year 2010,'' October 28, 2009;
    (18) Joint Publication 1-02, ``Department of Defense Dictionary of 
Military and Associated Terms,'' current edition; and
    (19) DoD Instruction 3020.41, ``Contractor Personnel Authorized to 
Accompany the U.S. Armed Forces.'' October 3, 2005.
    (b) [Reserved]

Sec.  103.2  Applicability.

    This part applies to:
    (a) OSD, the Military Departments, the Office of the Chairman of 
the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, 
the IG, DoD, the Defense Agencies, the DoD Field Activities, and all 
other organizational entities within the DoD (hereafter referred to 
collectively as the ``DoD Components'').
    (b) National Guard, and Reserve Component members who are sexually 
assaulted when performing active service, as defined in section 
101(d)(3) of Title 10, U.S.C., and inactive duty training. Refer to 
DoDI 6495.02 for additional SAPR and medical services provided to such 
personnel and eligibility criteria for Restricted Reporting.
    (c) Military dependents 18 years of age and older, who are eligible 
for treatment in the military healthcare system, at installations in 
the continental United States (CONUS) and outside of the continental 
United States (OCONUS), and who were victims of sexual assault 
perpetrated by someone other than a spouse or intimate partner. (The 
FAP, pursuant to DoDD 6400.1, covers adult military dependent sexual 
assault victims who are assaulted by a

[[Page 4242]]

spouse or intimate partner and military dependent sexual assault 
victims who are 17 years of age and younger.) The FAP Program provides 
the full range of services provided to victims of domestic violence to 
victims who are sexually assaulted, in violation of Articles 120 (Rape 
and Sexual Assault) and 125 (Sodomy), UCMJ, by someone with whom they 
have an intimate partner relationship.
    (d) The following non-military personnel, who are only eligible for 
limited medical services in the form of emergency care (see Sec.  103.3 
of this part), unless otherwise eligible to receive treatment in a 
military medical treatment facility. They will also be offered the 
limited SAPR services of a SARC and a SAPR VA while undergoing 
emergency care OCONUS. Refer to DoDI 6495.02 for any additional SAPR 
and medical services provided. These limited medical and SAPR services 
shall be provided to:
    (1) DoD civilian employees and their family dependents 18 years of 
age and older when they are stationed or performing duties OCONUS and 
eligible for treatment in the military healthcare system at military 
installations or facilities OCONUS. Refer to DoDI 6495.02 for reporting 
options available to DoD civilians and their family dependents 18 years 
of age and older; and
    (2) U.S. citizen DoD contractor personnel when they are authorized 
to accompany the Armed Forces in a contingency operation OCONUS and 
their U.S. citizen employees per DoDI 3020.41. Refer to DoDI 6495.02 
for reporting options available to DoD contractors.
    (e) Service members who are on active duty but were victims of 
sexual assault prior to enlistment or commissioning. They are eligible 
to receive SAPR services and either reporting option. The focus of this 
part and DoDI 6495.02 is on the victim of sexual assault. The DoD shall 
provide support to an active duty Service member regardless of when or 
where the sexual assault took place.
    (f) Supersedes all policy and regulatory guidance within the DoD 
not expressly mandated by law that is inconsistent with its provisions, 
or that would preclude execution.

Sec.  103.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Confidential communication. Oral, written, or electronic 
communications of personally identifiable information concerning a 
sexual assault victim and the sexual assault incident provided by the 
victim to the SARC, SAPR VA, or healthcare personnel in a Restricted 
Report. This confidential communication includes the victim's sexual 
assault forensic examination (SAFE) Kit and its information. See http://www.archives.gov/cui.
    Consent. Words or overt acts indicating a freely given agreement to 
the sexual conduct at issue by a competent person. An expression of 
lack of consent through words or conduct means there is no consent. 
Lack of verbal or physical resistance or submission resulting from the 
accused's use of force, threat of force, or placing another person in 
fear does not constitute consent. A current or previous dating 
relationship or the manner of dress of the person involved with the 
accused in the sexual conduct at issue shall not constitute consent. 
There is no consent where the person is sleeping or incapacitated, such 
as due to age, alcohol or drugs, or mental incapacity.
    Crisis intervention. Emergency non-clinical care aimed at assisting 
victims in alleviating potential negative consequences by providing 
safety assessments and connecting victims to needed resources. Either 
the SARC or SAPR VA will intervene as quickly as possible to assess the 
victim's safety and determine the needs of victims and connect them to 
appropriate referrals, as needed.
    Culturally-competent care. Care that provides culturally and 
linguistically appropriate services.
    DSAID. A DoD database that captures uniform data provided by the 
Military Services and maintains all sexual assault data collected by 
the Military Services. This database shall be a centralized, case-level 
database for the uniform collection of data regarding incidence of 
sexual assaults involving persons covered by this part and DoDI 
6495.02. DSAID will include information when available, or when not 
limited by Restricted Reporting, or otherwise prohibited by law, about 
the nature of the assault, the victim, the offender, and the 
disposition of reports associated with the assault. DSAID shall be 
available to the Sexual Assault and Response Office and the DoD to 
develop and implement congressional reporting requirements. Unless 
authorized by law, or needed for internal DoD review or analysis, 
disclosure of data stored in DSAID will only be granted when disclosure 
is ordered by a military, Federal, or State judge or other officials or 
entities as required by a law or applicable U.S. international 
agreement. This term and its definition are proposed for inclusion in 
the next edition of Joint Publication 1-02.
    Emergency. A situation that requires immediate intervention to 
prevent the loss of life, limb, sight, or body tissue to prevent undue 
suffering. Regardless of appearance, a sexual assault victim needs 
immediate medical intervention to prevent loss of life or undue 
suffering resulting from physical injuries internal or external, 
sexually transmitted infections, pregnancy, or psychological distress. 
Sexual assault victims shall be given priority as emergency cases 
regardless of evidence of physical injury.
    Emergency care. Emergency medical care includes physical and 
emergency psychological medical services and a SAFE consistent with the 
U.S. Department of Justice, Office on Violence Against Women Protocol.
    Gender-responsive care. Care the acknowledges and is sensitive to 
gender differences and gender-specific issues.
    Healthcare personnel. Persons assisting or otherwise supporting 
healthcare providers in providing healthcare services (e.g., 
administrative personnel assigned to a military medical treatment 
facility, or mental healthcare personnel). Healthcare personnel also 
includes all healthcare providers.
    Military Services. The term, as used in the SAPR Program, includes 
Army, Air Force, Navy, Marines, Reserve Components, and their 
respective Military Academies.
    Non-identifiable personal information. Non-identifiable personal 
information includes those facts and circumstances surrounding the 
sexual assault incident or that information about the individual that 
enables the identity of the individual to remain anonymous. In 
contrast, personal identifiable information is information belonging to 
the victim and alleged assailant of a sexual assault that would 
disclose or have a tendency to disclose the person's identity.
    Official investigative process. The formal process a commander or 
law enforcement organization uses to gather evidence and examine the 
circumstances surrounding a report of sexual assault.
    Personal identifiable information. Includes the person's name, 
other particularly identifying descriptions (e.g., physical 
characteristics or identity by position, rank, or organization), or 
other information about the person or the facts and circumstances 
involved that could reasonably be understood to identify the person 
(e.g., a female in a particular squadron or barracks when there is only 
one female assigned).

[[Page 4243]]

    Qualifying conviction. A State or Federal conviction, or a finding 
of guilty in a juvenile adjudication, for a felony crime of sexual 
assault and any general or special court-martial conviction for a 
Uniform Code of Military Justice (UCMJ) offense, which otherwise meets 
the elements of a crime of sexual assault, even though not classified 
as a felony or misdemeanor within the UCMJ. In addition, any offense 
that requires registration as a sex offender is a qualifying 
conviction.
    Recovery-oriented care. Focus on the victim and on doing what is 
necessary and appropriate to support victim recovery, and also, if a 
Service member, to support that Service member to be fully mission 
capable and engaged.
    Restricted reporting. Reporting option that allows sexual assault 
victims to confidentially disclose the assault to specified individuals 
(i.e., SARC, SAPR VA, or healthcare personnel), in accordance with 
``Victim Centered Care'' of U.S. Department of Justice, Office on 
Violence Against Women, ``A National Protocol for Sexual Assault 
Medical Forensic Examinations, Adults/Adolescents'' and receive medical 
treatment, including emergency care, counseling, and assignment of a 
SARC and SAPR VA, without triggering an official investigation. The 
victim's report provided to healthcare personnel (including the 
information acquired from a SAFE Kit), SARCs, or SAPR VAs will not be 
reported to law enforcement or to the command to initiate the official 
investigative process unless the victim consents or an established 
exception applies in accordance with DoDI 6495.02. The Restricted 
Reporting Program applies to Service Members and their military 
dependents 18 years of age and older. For additional persons who may be 
entitled to Restricted Reporting, see eligibility criteria in DoDI 
6495.02. Only a SARC, SAPR VA, or healthcare personnel may receive a 
Restricted Report, previously referred to as Confidential Reporting. 
This term and its definition are proposed for inclusion in the next 
edition of Joint Publication 1-02.
    SAFE Kit. The medical and forensic examination of a sexual assault 
victim under circumstances and controlled procedures to ensure the 
physical examination process and the collection, handling, analysis, 
testing, and safekeeping of any bodily specimens and evidence meet the 
requirements necessary for use as evidence in criminal proceedings. The 
victim's SAFE Kit is treated as a confidential communication when 
conducted as part of a Restricted Report. This term and its definition 
are proposed for inclusion in the next edition of Joint Publication 1-
02.
    SAPRO. Serves as DoD's single point of authority, accountability, 
and oversight for the SAPR program, except for legal processes and 
criminal investigative matters that are the responsibility of the Judge 
Advocates General of the Military Departments and the IG respectively. 
This term and its definition are proposed for inclusion in the next 
edition of Joint Publication 1-02.
    SAPR Program. A DoD program for the Military Departments and the 
DoD Components that establishes SAPR policies to be implemented 
worldwide. The program objective is an environment and military 
community intolerant of sexual assault. This term and its definition 
are proposed for inclusion in the next edition of Joint Publication 1-
02.
    SAPR VA. A person who, as a victim advocate, shall provide non-
clinical crisis intervention, referral, and ongoing non-clinical 
support to adult sexual assault victims. Support will include providing 
information on available options and resources to victims. The SAPR VA, 
on behalf of the sexual assault victim, provides liaison assistance 
with other organizations and agencies on victim care matters and 
reports directly to the SARC when performing victim advocacy duties. 
Personnel who are interested in serving as a SAPR VA are encouraged to 
volunteer for this duty assignment. This term and its definition are 
proposed for inclusion in the next edition of Joint Publication 1-02.
    SARC. The single point of contact at an installation or within a 
geographic area who oversees sexual assault awareness, prevention, and 
response training; coordinates medical treatment, including emergency 
care, for victims of sexual assault; and tracks the services provided 
to a victim of sexual assault from the initial report through final 
disposition and resolution. This term and its definition are proposed 
for inclusion in the next edition of Joint Publication 1-02.
    Senior commander. An officer, usually in the grade of O-6 or 
higher, who is the commander of a military installation or comparable 
unit and has been designated by the Military Service concerned to 
oversee the SAPR Program.
    Service member. An active duty member of a Military Service. In 
addition, National Guard and Reserve Component members who are sexually 
assaulted when performing active service, as defined in section 
101(d)(3) of Title 10, U.S.C., and inactive duty training.
    Sexual assault. Intentional sexual contact characterized by use of 
force, threats, intimidation, or abuse of authority or when the victim 
does not or cannot consent. Sexual assault includes rape, forcible 
sodomy (oral or anal sex), and other unwanted sexual contact that is 
aggravated, abusive, or wrongful (including unwanted and inappropriate 
sexual contact), or attempts to commit these acts.
    Unrestricted reporting. A process that an individual covered by 
this policy uses to disclose, without requesting confidentiality or 
Restricted Reporting, that he or she is the victim of a sexual assault. 
Under these circumstances, the victim's report provided to healthcare 
personnel, the SARC, a SAPR VA, command authorities, or other persons 
is reported to law enforcement and may be used to initiate the official 
investigative process. Additional policy and guidance are provided in 
DoDI 6495.02. This term and its definition are proposed for inclusion 
in the next edition of Joint Publication 1-02.
    Victim. A person who asserts direct physical, emotional, or 
pecuniary harm as a result of the commission of a sexual assault. The 
term encompasses all persons 18 and over eligible to receive treatment 
in military medical treatment facilities; however, the Restricted 
Reporting Program applies to Service Members and their military 
dependents 18 years of age and older. For additional persons who may be 
entitled to Restricted Reporting, see eligibility criteria in DoDI 
6495.02.
    Sec.  103.4 Policy.
    It is DoD policy that:
    (a) This part and DoDI 6495.02 implement the DoD SAPR policy.
    (b) The DoD goal is a culture free of sexual assault by providing 
an environment of prevention, education and training, response 
capability (defined in DoDI 6495.02), victim support, reporting 
procedures, and accountability that enhances the safety and well being 
of all persons covered by this part and DoDI 6495.02.
    (c) The SAPR Program shall:
    (1) Focus on the victim and on doing what is necessary and 
appropriate to support victim recovery, and also, if a Service member, 
to support that Service member to be fully mission capable and engaged. 
The SAPR Program shall provide care that is gender-responsive, 
culturally-competent, and recovery-oriented. (See Sec.  103.3 of this 
part)
    (2) Not provide policy for legal processes within the 
responsibility of the Judge Advocates General of the Military 
Departments provided in

[[Page 4244]]

Chapter 47 of Title 10, U.S.C. (also known as and hereafter referred to 
as ``UCMJ'') and the Manual for Court's-Martial or for criminal 
investigative matters assigned to the Judge Advocates General of the 
Military Departments and IG, DoD.
    (d) Standardized SAPR requirements, terminology, guidelines, 
protocols, and guidelines for instructional materials shall focus on 
awareness, prevention, and response at all levels as appropriate.
    (e) The terms ``Sexual Assault Response Coordinator (SARC)'' and 
``SAPR Victim Advocate (VA),'' as defined in this part and the DoDI 
6495.02, shall be used as standard terms throughout the DoD to 
facilitate communications and transparency regarding SAPR capacity. For 
further information regarding SARC and SAPR VA roles and 
responsibilities, see DoDI 6495.02.
    (1) SARC. The SARC shall serve as the single point of contact for 
coordinating appropriate and responsive care for sexual assault 
victims. SARCs shall coordinate sexual assault victim care and sexual 
assault response when a sexual assault is reported. The SARC shall 
supervise SAPR VAs, but may be called on to perform victim advocacy 
duties.
    (2) SAPR VA. The SAPR VA shall provide non-clinical crisis 
intervention and on-going support, in addition to referrals for adult 
sexual assault victims. Support will include providing information on 
available options and resources to victims.
    (f) Command sexual assault awareness and prevention programs, as 
well as law enforcement and criminal justice procedures that enable 
persons to be held accountable for their actions, as appropriate, shall 
be established and supported by all commanders.
    (g) An immediate, trained sexual assault response capability 
(defined in DoDI 6495.02) shall be available for each report of sexual 
assault in all locations, including in deployed locations. The response 
time may be affected by operational necessities, but will reflect that 
sexual assault victims shall be treated as emergency cases.
    (h) Victims of sexual assault shall be protected from coercion, 
retaliation, and reprisal in accordance with DoDD 7050.06.
    (i) Victims of sexual assault shall be protected, treated with 
dignity and respect, and shall receive timely access to comprehensive 
medical treatment, including emergency care treatment and services, as 
described in this part and DoDI 6495.02.
    (j) Emergency care shall consist of emergency medical care and the 
offer of a SAFE consistent with the ``A National Protocol for Sexual 
Assault Medical Forensic Examinations, Adults/Adolescents'' and refer 
to DD Form 2911, ``DoD Sexual Assault Medical Forensic Examination 
Report'' and accompanying instructions. The victim shall be advised 
that even if a SAFE is declined, the victim is encouraged (but not 
mandated) to receive medical care, psychological care, and victim 
advocacy.
    (1) Sexual assault patients shall be given priority, so that they 
shall be treated as emergency cases. A sexual assault victim needs 
immediate medical intervention to prevent loss of life or suffering 
resulting from physical injuries (internal or external), sexually 
transmitted infections, pregnancy, and psychological distress. 
Individuals disclosing a recent sexual assault shall, with their 
consent, be quickly transported to the exam site, promptly evaluated, 
treated for serious injuries, and then, with the patient's consent, 
undergo a SAFE, pursuant to ``Victim Centered Care'' of ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents'' and refer to DD Form 2911 and accompanying instructions.
    (2) Sexual assault patients shall be treated as emergency cases, 
regardless of whether physical injuries are evident. Patients' needs 
shall be assessed for immediate medical or mental health intervention 
pursuant to ``Victim Centered Care,'' and ``Triage and Intake'' of ``A 
National Protocol for Sexual Assault Medical Forensic Examinations, 
Adults/Adolescents.'' Sexual assault victims shall be treated 
uniformly, consistent with ``Victim Centered Care'' of ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents'' and DD Form 2911 and accompanying instructions, 
regardless of their behavior because when severely traumatized, sexual 
assault patients may appear to be calm, indifferent, submissive, 
jocular, angry, emotionally distraught, or even uncooperative or 
hostile towards those who are trying to help.
    (k) Service members and their dependents who are 18 years of age or 
older covered by this part (see Sec.  103.2(d)) and DoDI 6495.02 who 
are sexually assaulted have two reporting options: Unrestricted or 
Restricted Reporting. Complete, Unrestricted Reporting of sexual 
assault is favored by the DoD. See DoDI 6495.02 for additional 
information on the DoD sexual assault reporting options and exceptions 
as they apply to Restricted Reporting. Consult DoDD 5400.11 and DoD 
6025.18-R for protections of personally identifiable information 
solicited, collected, maintained, accessed, used, disclosed, and 
disposed during the treatment and reporting processes. The two 
reporting options are as follows:
    (1) Unrestricted Reporting allows an eligible person who is 
sexually assaulted to access medical treatment and counseling and 
request an official investigation of the allegation using existing 
reporting channels (e.g., chain of command, law enforcement, healthcare 
personnel, the SARC). When a sexual assault is reported through 
Unrestricted Reporting, a SARC shall be notified as soon as possible, 
respond, assign a SAPR VA, and offer the victim medical care and a 
SAFE.
    (2) Restricted Reporting allows sexual assault victims (see 
eligibility criteria in Sec.  103.2(c) of this part) to confidentially 
disclose the assault to specified individuals (i.e., SARC, SAPR VA, or 
healthcare personnel), in accordance with DoDD 5400.11, and receive 
medical treatment, including emergency care, counseling, and assignment 
of a SARC and SAPR VA, without triggering an official investigation. 
The victim's report to healthcare personnel (including the information 
acquired from a SAFE Kit), SARCs, or SAPR VAs will not be reported to 
law enforcement or to the victim's command, to initiate the official 
investigative process, unless the victim consents or an established 
exception applies in accordance with DoDI 6495.02. When a sexual 
assault is reported through Restricted Reporting, a SARC shall be 
notified as soon as possible, respond, assign a SAPR VA, and offer the 
victim medical care and a SAFE.
    (i) Eligibility for Restricted Reporting. The Restricted Reporting 
Program applies to Service Members and their military dependents 18 
years of age and older. For additional persons who may be entitled to 
Restricted Reporting, see eligibility criteria in DoDI 6495.02.
    (ii) DoD Dual Objectives. The DoD is committed to ensuring victims 
of sexual assault are protected; treated with dignity and respect; and 
provided support, advocacy, and care. The DoD supports effective 
command awareness and preventive programs. The DoD also strongly 
supports applicable law enforcement and criminal justice procedures 
that enable persons to be held accountable for sexual assault offenses 
and criminal dispositions, as appropriate. To achieve these dual 
objectives, DoD preference is for complete Unrestricted Reporting of 
sexual assaults to allow for the provision of victims' services and to 
pursue accountability. However,

[[Page 4245]]

Unrestricted Reporting may represent a barrier for victims to access 
services, when the victim desires no command or law enforcement 
involvement. Consequently, the Department recognizes a fundamental need 
to provide a confidential disclosure vehicle via the Restricted 
Reporting option.
    (iii) Designated Personnel Authorized to Accept a Restricted 
Report. Only the SARC, SAPR VA, or healthcare personnel are designated 
as authorized to accept a Restricted Report.
    (iv) SAFE Confidentiality Under Restricted Reporting. A SAFE and 
its information shall be afforded the same confidentiality as is 
afforded victim statements under the Restricted Reporting option. See 
DoDI 6495.02 for additional information.
    (v) Disclosure of Confidential Communications. In cases where a 
victim elects Restricted Reporting, the SARC, assigned SAPR VA, and 
healthcare personnel may not disclose confidential communications or 
SAFE Kit information to law enforcement or command authorities, either 
within or outside the DoD, except as provided in DoDI 6495.02. In 
certain situations when information about a sexual assault comes to the 
commander's or law enforcement official's attention from a source 
independent of the Restricted Reporting avenues and an independent 
investigation is initiated, a SARC, SAPR VA, or healthcare personnel 
may not disclose confidential communications if obtained under 
Restricted Reporting (see exceptions to Restricted Reporting in DoDI 
6495.02). Improper disclosure of confidential communications under 
Restricted Reporting, improper release of medical information, and 
other violations of this part are prohibited and may result in 
discipline pursuant to the UCMJ, or other adverse personnel or 
administrative actions.
    (l) Enlistment or commissioning of personnel in the Military 
Services shall be prohibited and no waivers allowed when the person has 
a qualifying conviction (see Sec.  103.3) for a crime of sexual 
assault.
    (m) The focus of this part and DoDI 6495.02 is on the victim of 
sexual assault. The DoD shall provide support to an active duty Service 
member regardless of when or where the sexual assault took place.
    Sec.  103.5 Responsibilities.
    (a) In accordance with the authority in DoDD 5124.02, the USD(P&R) 
shall:
    (1) Develop overall policy and provide oversight for the DoD SAPR 
Program, except legal processes in the UCMJ and criminal investigative 
matters assigned to the Judge Advocates General of the Military 
Departments and IG, DoD respectively.
    (2) Develop strategic program guidance, joint planning objectives, 
standard terminology, and identify legislative changes needed to ensure 
the future availability of resources in support of DoD SAPR policies.
    (3) Develop metrics to measure compliance and effectiveness of SAPR 
training, awareness, prevention, and response policies and programs. 
Analyze data and make recommendations regarding the SAPR policies and 
programs to the Secretaries of the Military Departments.
    (4) Monitor compliance with this part and DoDI 6495.02, and 
coordinate with the Secretaries of the Military Departments regarding 
Service SAPR policies.
    (5) Collaborate with Federal and State agencies that address SAPR 
issues and serve as liaison to them as appropriate. Strengthen 
collaboration on sexual assault policy matters with U.S. Department of 
Veterans Affairs on the issues of providing high quality and accessible 
health care and benefits to victims of sexual assault.
    (6) Oversee the DoD SAPRO. Serving as the DoD single point of 
authority, accountability, and oversight for the SAPR program, SAPRO 
provides recommendations to the USD(P&R) on the issue of DoD sexual 
assault policy matters on prevention, response, and oversight. SAPRO is 
responsible for:
    (i) Implementing and monitoring compliance with DoD sexual assault 
policy on prevention and response, except for legal processes in the 
UCMJ and Manual for Courts-Martial and criminal investigative matters 
assigned to the Judge Advocates General of the Military Departments and 
IG respectively.
    (ii) Providing technical assistance to the Heads of the DoD 
Components in addressing matters concerning SAPR.
    (iii) Acquiring quarterly and annual SAPR data from the Military 
Services, assembling annual congressional reports involving persons 
covered by this part and DoDI 6495.0, and consult with and relying on 
the Judge Advocates General of the Military Departments in questions 
concerning disposition results of sexual assault cases in their 
respective departments.
    (iv) Establishing reporting categories and monitoring specific 
goals included in the annual SAPR assessments of each Military Service, 
in their respective departments.
    (v) Overseeing the creation, implementation, maintenance, and 
function of DSAID, an integrated database that will meet congressional 
reporting requirements, support Service SAPR Program management, and 
inform DoD SAPRO oversight activities.
    (b) The Assistant Secretary of Defense for Health Affairs 
(ASD(HA)), under the authority, direction, and control of the USD(P&R), 
shall advise the USD(P&R) on DoD sexual assault healthcare policies, 
clinical practice guidelines, related procedures, and standards 
governing DoD healthcare programs for victims of sexual assault. The 
ASD(HA) shall direct that all sexual assault patients be given 
priority, so that they shall be treated as emergency cases.
    (c) The Director of the Defense Human Resources Activity (DoDHRA), 
under the authority, direction, and control of USD(P&R), shall provide 
operational support to the USD(P&R) as outlined in paragraph (a)(6) of 
this section.
    (d) The General Counsel of the DoD (GC, DoD), shall provide advice 
and assistance on all legal matters, including the review and 
coordination of all proposed issuances and exceptions to policy and the 
review of all legislative proposals affecting mission and 
responsibilities of the DoD SAPRO.
    (e) The IG, DoD, shall:
    (1) Develop and oversee the promulgation of criminal investigative 
and law enforcement policy regarding sexual assault and establish 
guidelines for the collection and preservation of evidence with non-
identifiable personal information on the victim, for the Restricted 
Reporting process, in coordination with the ASD(HA).
    (2) Oversee criminal investigations of sexual assault conducted by 
the DoD Components.
    (3) Collaborate with the DoD SAPRO on sexual assault matters.
    (f) The Secretaries of the Military Departments shall:
    (1) Establish departmental policies and procedures to implement the 
SAPR Program consistent with the provisions of this part and DoDI 
6495.02, to include the Military Academies within their cognizance; 
monitor departmental compliance with this part and DoDI 6495.02.
    (2) Coordinate all Military Service SAPR policy changes with the 
USD(P&R).
    (3) In coordination with USD(P&R), implement recommendations 
regarding Military Service compliance and effectiveness of SAPR 
training, awareness, prevention, and response policies and programs.
    (4) Align Service SAPR Strategic Plans with the DoD SAPR Strategic 
Plan.
    (5) Align Service prevention strategy with the Spectrum of 
Prevention, consistent with the DoD Sexual Assault

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Prevention Strategy, which consists of six pillars:
    (i) Influencing Policy
    (ii) Changing Organizational Practices
    (iii) Fostering Coalitions and Networks
    (iv) Educating Providers
    (v) Promoting Community Education
    (vi) Strengthening Individual Knowledge and Skills
    (6) Require commanders to ensure that medical treatment (including 
emergency care) and SAPR services are provided to victims of sexual 
assaults in a timely manner unless declined by the victim.
    (7) Utilize the terms ``Sexual Assault Response Coordinator 
(SARC)'' and ``SAPR Victim Advocate (VA),'' as defined in this part and 
DoDI 6495.02, as standard terms to facilitate communications and 
transparency regarding sexual assault response capacity.
    (8) Establish the position of the SARC to serve as the single point 
of contact for ensuring that sexual assault victims receive appropriate 
and responsive care. The SARC should be a Service member, DoD civilian 
employee, or National Guard technician.
    (9) Provide program-appropriate resources to enable the Combatant 
Commanders to achieve compliance with the policies set forth in this 
part and DoDI 6495.02.
    (10) Establish and codify Service SAPR Program support to Combatant 
Commands and Defense Agencies, either as a host activity or in a 
deployed environment.
    (11) Provide SAPR Program and obligation data to the USD(P&R), as 
required.
    (12) Submit quarterly reports to the USD(P&R) that include 
information regarding all sexual assaults reported during the quarter, 
until DSAID becomes fully operational for each individual Service. 
Require confirmation that a multi-disciplinary case management group 
tracks each open Unrestricted Report and that a multi-disciplinary case 
management group meetings are held monthly for reviewing all 
Unrestricted Reports of sexual assaults.
    (13) Provide annual reports of sexual assaults involving persons 
covered by this part and DoDI 6495.02 to the DoD SAPRO for 
consolidation into the annual report to Congress in accordance with 
sections 577 of Public Law 108-375.
    (14) Provide data connectivity, or other means, to authorized users 
to ensure all sexual assaults reported in theater and other joint 
environments are incorporated into the DSAID, or authorized interfacing 
systems for the documentation of reports of sexual assault, as required 
by section 563 of Public Law 110-417.
    (15) Ensure that Service data systems used to report case-level 
sexual assault information into the DSAID are compliant with DoD data 
reporting requirements, pursuant to section 563 of Public Law 110-417.
    (16) Require extensive, continuing in-depth SAPR training for DoD 
personnel and specialized SAPR training for commanders, senior enlisted 
leaders, SARCs, SAPR VAs, investigators, law enforcement officials, 
chaplains, healthcare personnel, and legal personnel in accordance with 
DoDI 6495.02.
    (17) Oversee sexual assault training within the DoD law enforcement 
community.
    (18) Direct that Service military criminal investigative 
organizations require their investigative units to communicate with 
their servicing SARC and participate with the multi-disciplinary Case 
Management Group convened by the SARC, in accordance with this part and 
DoDI 6495.02.
    (19) Provide commanders with procedures that:
    (i) Establish guidance for when a Military Protective Order (MPO) 
has been issued, that the Service member who is protected by the order 
is informed, in a timely manner, of the member's option to request 
transfer from the command to which that member is assigned in 
accordance with section 567(c) of Public Law 111-84.
    (ii) Ensure that the appropriate civilian authorities shall be 
notified of the issuance of a military protective order (MPO) and of 
the individuals involved in the order, when an MPO has been issued 
against a Service member or when any individual addressed in the MPO 
does not reside on a military installation at any time when an MPO is 
in effect. An MPO issued by a military commander shall remain in effect 
until such time as the commander terminates the order or issues a 
replacement order. (See section 561 of Pub. L. 110-417.) The issuing 
commander also shall notify the appropriate civilian authorities of any 
change made in a protective order covered by Chapter 80 of Title 10, 
U.S.C., and the termination of the protective order.
    (iii) Ensure that the person seeking the MPO shall be advised that 
the MPO is not enforceable by civilian authorities off base and that 
victims desiring protection off base are advised to seek a civilian 
protective order (see section 561 of 110-417 and section 567(c) of Pub. 
L. 111-84).
    (g) The Chairman of the Joint Chiefs of Staff shall:
    (1) Assess SAPR as part of the overall force planning function of 
any force deployment decision, and periodically reassess the SAPR 
posture of deployed forces.
    (2) Monitor implementation of this part, DoDI 6495.02, and 
implementing instructions, including during military operations.
    (3) Utilize the terms ``Sexual Assault Response Coordinator 
(SARC)'' and ``SAPR Victim Advocate (VA),'' as defined in this part and 
DoDI 6495.02, as standard terms to facilitate communications and 
transparency regarding sexual assault response capacity.
    (4) Review relevant documents, including the Combatant Commanders' 
joint plans, operational plans, concept plans, and deployment orders, 
to ensure they identify and include SAPR Program requirements.
    (h) The Commanders of the Combatant Commands, in coordination with 
the other Heads of the DoD Components and through the Chairman of the 
Joint Chiefs of Staff, shall:
    (1) Establish policies and procedures to implement the SAPR Program 
and oversee compliance with this part and DoDI 6495.02 within their 
areas of responsibility and during military operations.
    (2) Formally document agreements with installation host Service 
commanders, component theater commanders, or other heads of another 
agency or organization, for investigative, legal, medical, counseling, 
or other response support provided to incidents of sexual assault.
    (3) Direct that relevant documents are drafted, including joint 
operational plans and deployment orders, that establish theater-level 
requirements for the prevention of and response to incidents of sexual 
assault that occur, to include during the time of military operations.
    (4) Require that sexual assault response capability information be 
provided to all persons within their area of responsibility covered by 
this part and DoDI 6495.02, to include reporting options and SAPR 
services available at deployed locations and how to access these 
options.
    (5) Ensure medical treatment (including emergency care) and SAPR 
services are provided to victims of sexual assaults in a timely manner 
unless declined by the victim.
    (6) Direct subordinate commanders coordinate relationships and 
agreements for host or installation support at forward-deployed 
locations to ensure a

[[Page 4247]]

sexual assault response capability is available to members of their 
command and persons covered by this part and DoDI 6495.02 as consistent 
with operational requirements.
    (7) Direct that sexual assault incidents are given priority so that 
they shall be treated as emergency cases.
    (8) Direct subordinate commanders provide all personnel with 
procedures to report sexual assaults.
    (9) Require subordinate commanders at all levels to monitor the 
command climate with respect to SAPR, and take appropriate steps to 
address problems.
    (10) Require that SAPR training for DoD personnel and specialized 
training for commanders, senior enlisted leaders, SARCs, SAPR VAs, 
investigators, law enforcement officials, chaplains, healthcare 
personnel, and legal personnel be conducted prior to deployment in 
accordance with DoDI 6495.02.
    (11) Direct subordinate commanders to develop procedures that:
    (i) Establish guidance for when an MPO has been issued, that the 
Service member who is protected by the order is informed, in a timely 
manner, of the member's option to request transfer from the command to 
which that member is assigned in accordance with section 567(c) of 
Public Law 111-84.
    (ii) In OCONUS areas, if appropriate, direct that the appropriate 
civilian authorities be notified of the issuance of an MPO and of the 
individuals involved in an order when an MPO has been issued against a 
Service member or when any individual involved in the MPO does not 
reside on a military installation when an MPO is in effect. An MPO 
issued by a military commander shall remain in effect until such time 
as the commander terminates the order or issues a replacement order. 
(See section 561 of Pub. L. 110-417.) The issuing commander also shall 
notify the appropriate civilian authorities of any change made in a 
protective order covered by Chapter 80 of Title 10, U.S.C. and the 
termination of the protective order.
    (iii) Ensure that the person seeking the MPO is advised that the 
MPO is not enforceable by civilian authorities off base and victims 
desiring protection off base should be advised to seek a civilian 
protective order in that jurisdiction pursuant to section 562 of Public 
Law 110-417.
    (i) The Director, DoDHRA, shall provide operational support to the 
USD(P&R) as outlined in paragraph (a)(6) of this section.

    Dated: January 20, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison, Department of Defense.
[FR Doc. 2012-1785 Filed 1-26-12; 8:45 am]
BILLING CODE 5001-06-P
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