JUDICIAL 

PROCEEDINGS 

PANEL

REPORT ON 

RETALIATION RELATED TO 

SEXUAL ASSAULT OFFENSES

February 2016
JUDICIAL PROCEEDINGS PANEL

CHAIR

The Honorable Elizabeth Holtzman

MEMBERS

The Honorable Barbara S. Jones

Mr. Victor Stone

Professor Thomas W. Taylor

Vice Admiral Patricia A. Tracey, U.S. Navy, Retired

STAFF DIRECTOR

Colonel Kyle W. Green, U.S. Air Force

DEPUTY STAFF DIRECTOR

Lieutenant Colonel Kelly McGovern, U.S. Army

CHIEF OF STAFF

Mr. Dale L. Trexler

DESIGNATED FEDERAL OFFICIAL

Ms. Maria Fried
Report of the Judicial Proceedings 

Since Fiscal Year 2012 Amendments Panel

Retaliation Related to Sexual Assault Offenses

February 2016
5

REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

JUDICIAL PROCEEDINGS PANEL

 

One Liberty Center • Suite 150 • 875 North Randolph Street • Arlington, VA 22203

 

 

February 11, 2016

The Honorable John McCain The Honorable Jack Reed

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States Senate United States Senate

Washington, DC 20510 Washington, DC 20510

The Honorable Mac Thornberry The Honorable Adam Smith

Chair, Committee Ranking Member, Committee

on Armed Services on Armed Services

United States House of United States House of

Representatives Representatives

Washington, DC 20515 Washington, DC 20515

The Honorable Ashton B. Carter

Secretary of Defense

1000 Defense Pentagon

Washington, DC 20301-1000

Dear Chairs, Ranking Members, and Mr. Secretary:

We are pleased to submit this report of the Judicial Proceedings Since Fiscal Year 

2012 Amendments Panel (JPP) on retaliation related to sexual assault offenses. This

report summarizes the JPP’s review of retaliation against Service members who have 

reported a sexual assault, who were victims of a sexual assault and are considering 

reporting it, or who have intervened on behalf of a victim of a sexual assault. Included in 

this report are 13 recommendations to improve the processes for reporting, investigating, 

monitoring, resolving, tracking, and preventing retaliation.

To gather information for this report, the JPP held public meetings to hear from 

civilian and military experts and practitioners. The JPP also received responses to written 

requests for information from DoD and the Services about retaliation policies and 

procedures. The JPP expresses sincere appreciation to everyone who contributed to this 

report.

Elizabeth Holtzman

Chair

Barbara Jones

Victor Stone

Tom Taylor

Patricia Tracey
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REPORT ON RESTITUTION AND COMPENSATION FOR VICTIMS OF ADULT SEXUAL ASSAULT CRIMES

-2-

The JPP looks forward to continuing its review of military judicial proceedings 

for sexual assault crimes and addressing other topics in future reports.

Respectfully submitted,

_______________________________

Honorable Elizabeth Holtzman, Chair

____________________________ _____________________________

Honorable Barbara S. Jones Victor Stone

___________________________ ____________________________

Thomas W. Taylor Patricia A. Tracey
1

Contents

Contents

Transmittal Letter 5

Table of Contents 1

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF JPP RECOMMENDATIONS ON 

RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES . . . . . . . . . . . . . . . . 5

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. OVERVIEW OF RETALIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Definitions and Forms of Retaliation 

B. Timing of Retaliation

C. Effects of Retaliation 

D. Current Prohibitions on Retaliation 

III. SCOPE OF THE PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Varying Accounts of the Problem 

B. Data and Survey Results

C. Recent Efforts to Collect Data

IV. REPORTING RETALIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

A. Channels Through Which Victims Can Report Retaliation

B. Instruments for Reporting Occurrences of Retaliation

V. ROLES AND RESPONSIBILITIES OF PERSONNEL WHO RESPOND TO 

RETALIATION REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

A. Sexual Assault Response Coordinators and Victim Advocates

B. Special Victims’ Counsel

C. Trial Counsel 

D. Commanders 

E. Noncommissioned Officers 

Table of Contents
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

VI. INVESTIGATING AND MONITORING RETALIATION . . . . . . . . . . . . . . . . 43

A. Investigations by Military Criminal Investigative Organizations

B. Investigations by DoD and Service Inspectors General

C. Command Investigations

D. Installation Case Management Groups’ Monitoring of 

Retaliation Related to Sexual Assault Reports 

VII. RESOLVING RETALIATION COMPLAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . 57

A. Responding to the Victim

B. Remedies for Victims

C. Holding Offenders Accountable

VIII. PREVENTING FUTURE RETALIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

A. DoD and the Services’ Initiatives Focused on Training

B. Training Saturation

IX. PROPOSED AND PENDING LEGISLATION ADDRESSING RETALIATION 71

A. S. 1130, The Legal Justice for Servicemembers Act

B. Section 539 of the FY 2016 National Defense Authorization Act 

(Requirement for a Retaliation Prevention Strategy)

APPENDICES

A. Service Regulations on Retaliation

B. Judicial Proceedings Panel Authorizing Statutes

C. Judicial Proceedings Panel Members

D. Staff Members and Designated Federal Officials

E: Judicial Proceedings Panel Public Meetings Addressing Retaliation

F. Acronyms and Abbreviations

G. Sources Consulted
3

Executive Summary

RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Retaliation related to sexual assault offenses is intertwined with the issues at the heart of the Judicial 

Proceedings Panel’s (JPP’s) mandate. The JPP examined the issue of retaliation against Service members 

who have reported a sexual assault, who were victims of a sexual assault and are considering reporting 

it, or who have intervened on behalf of a victim of a sexual assault. 

Retaliation encompasses a broad range of behaviors. It includes social retaliation, such as harassing or 

isolating a Service member because he or she reported a sexual assault; professional retaliation, such 

as interfering with a Service member’s promotion because he or she reported a sexual assault; and 

criminal retribution, such as assaulting or threatening a Service member because he or she reported a 

sexual assault. These behaviors can occur any time after the underlying sexual assault. In some cases, 

Service members experience retaliation before the sexual assault is reported. In other cases, Service 

members experience retaliation during the investigation, prosecution, and post-adjudication stages of 

the judicial process.

The negative effects of retaliation in the military are clear. Retaliation not only harms the victims in 

these situations but also damages unit cohesion and mission readiness. Fear of retaliation can also 

undermine other victims’ willingness to report sexual assault in the future, allowing the cycle of sexual 

assault to continue.

On the other hand, the scope of the problem of retaliation in the military is unclear. A 2014 survey 

by the RAND Corporation indicated that 62% of active duty women who reported unwanted sexual 

contact to a military authority in 2014 perceived some form of retaliation; a survey from fiscal year 

2012 yielded the same result. However, individuals testifying before the JPP gave varying accounts 

about the nature and prevalence of the problem. Furthermore, there are currently no centralized 

mechanisms for reporting and tracking retaliation complaints and outcomes in the military, and the 

Department of Defense (DoD) and the Services are still developing policies and procedures for defining, 

responding to, and monitoring the problem.

The JPP is concerned about the lack of data on retaliation against victims of sexual assault. Though 

surveys indicate that retaliation may be prevalent among Service members who report a sexual assault, 

more precise data are needed.

The JPP recommends that DoD and the Services improve policies for reporting and monitoring 

retaliation against sexual assault victims. While the Services should continue to provide multiple 

channels for victims to report retaliation, it is essential that one person be responsible for collecting 

retaliation reports from all reporting channels and monitoring each case. That responsibility should 

belong to the sexual assault response coordinator. 

The Services should also implement a standardized form to ensure that uniform information is 

collected from each victim. The form should be updated to reflect the status of the retaliation case 

throughout the investigative and judicial process.

Executive Summary
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

In addition, the JPP recommends that the Services improve mechanisms for tracking retaliation 

complaints and outcomes beyond the installation level. This data should be used to inform future 

policymaking on preventing and handling retaliation. 

The JPP also recommends that command leadership take further actions to address retaliation in 

their ranks. Leaders must convey the message that retaliation will not be tolerated. Complaints of 

retaliation must be thoroughly investigated by the appropriate authority. Service members who engage 

in retaliatory behaviors must be held accountable. Service members at all levels of the command must 

be trained on retaliation and its harmful effects.

DoD and the Services have taken some steps to respond to retaliation, but the JPP believes that more 

needs to be done. Sexual assault cannot be effectively addressed without also addressing retaliation.
5

Summary of JPP Recommendations on 

Retaliation Related to Sexual Assault Offenses*

• SUMMARY OF JPP RECOMMENDATIONS ON RETALIATION**

Recommendation 24: In the Department of Defense’s strategy addressing retaliation related 

to sexual assault, the Secretary of Defense specify (1) processes for reporting and investigating 

retaliation, (2) responsibility for the collection and monitoring of reports, and (3) mechanisms for 

tracking retaliation complaints and outcomes.

• Section 539 of the Fiscal Year 2016 National Defense Authorization Act requires the Secretary 

of Defense to establish a comprehensive strategy to prevent retaliation carried out by Service 

members against other Service members who report sexual assault or intervene on behalf of 

victims of sexual assault.

• In May 2015, the Secretary of Defense directed the Acting Under Secretary of Defense for 

Personnel and Readiness to collaborate with the Services and the DoD Office of Inspector General 

to establish a comprehensive retaliation prevention strategy. A report detailing the strategy is 

expected to be released in the second quarter of fiscal year 2016. 

• To effectively address and respond to retaliation, DoD must develop uniform processes across all 

the Services for reporting, monitoring, and tracking retaliation complaints and outcomes. Specific 

changes to these processes are detailed in the recommendations below.

Recommendation 25: The Secretary of Defense and Service Secretaries develop a standardized 

form for reporting retaliation. The standardized form should be linked to DD Form 2910 in 

the Defense Sexual Assault Incident Database to properly track retaliation allegations related to 

sexual assault offenses, should provide victims of retaliation with the option to file an informal or 

formal retaliation report, and should be updated throughout the investigative and judicial process 

to ensure that the retaliation allegation is monitored and resolved.

• A standardized form would ensure that victims of retaliation provide complete information when 

reporting retaliation. In addition, linking the standardized retaliation report form to DD Form 

2910 would enable the retaliation complaint to be analyzed and monitored in the context of the 

underlying report of sexual assault. 

• Providing victims of retaliation the option to file an informal retaliation complaint would enable 

commands to quickly address and resolve complaints at the lowest possible level. Commanders 

would retain the authority to initiate a separate formal investigation if they discover egregious 

misconduct associated with the retaliation complaint.

* JPP Recommendations 1-11 are included in the Judicial Proceedings Panel Initial Report 11 (Feb. 2015), available at

http://jpp.whs.mil/public/docs/08-Panel_Reports/JPP_InitialReport_Final_20150204.pdf. JPP Recommendations 12-17 are 

included in the Judicial Proceedings Panel Report on Restitution and Compensation for Military Adult Sexual Assault

Crimes 5 (Feb. 2016), available at jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Rest_Comp_Report_Final_20160201_

Web.pdf. JPP Recommendations 18-23 are included in the Judicial Proceedings Panel Report on Article 120 of the

Uniform Code of Military Justice 5-7 (Feb. 2016), available at jpp.whs.mil/Public/docs/08-Panel_Reports/JPP_Art120_

Report_Final_20160204_Web.pdf.

Summary of JPP Recommendations on Article 120 of the Uniform Code of Military Justice
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

• Using the standardized form throughout the investigative process, until the final disposition of 

the case, would improve the tracking and monitoring of retaliation reports, investigations, and 

outcomes. 

Recommendation 26: The Secretary of Defense and Service Secretaries continue to provide 

multiple channels for Service members to report retaliation. In addition, the Secretary of Defense 

and Service Secretaries formally task installation sexual assault response coordinators (SARCs) 

with consolidating information from reports on retaliation, recording information on retaliation 

reports in the Defense Sexual Assault Incident Database, and ensuring that information about the 

investigation and resolution of retaliation claims is properly and fully monitored.

• DoD policy provides multiple channels through which victims of sexual assault may make a 

report of sexual assault. Similarly, victims of retaliation should have multiple channels through 

which they can report instances of retaliation related to sexual assaults to ensure that they can 

make a report to someone in whom they feel comfortable confiding.

• Tasking sexual assault response coordinators (SARCs) with the responsibility to collect and 

monitor reports of retaliation establishes uniform responsibility for tracking the number and 

nature of complaints and ensuring that the complaints are followed up on, while minimizing 

the sharing of sensitive information. Sexual assault response coordinators (SARCs) should be 

responsible for ensuring that retaliation reports are addressed at the monthly case management 

group meetings.

• Entering information on retaliation into the Defense Sexual Assault Incident Database would 

enable DoD and the Services to maintain an accurate and up-to-date database of information on 

all retaliation complaints and outcomes. 

Recommendation 27: Congress require the Secretary of Defense and Service Secretaries to track 

retaliation allegations related to sexual assault offenses and publish information regarding 

retaliation complaints, investigations, and final dispositions in the Department’s annual report to 

Congress on sexual assault prevention and response.

• The scope and full nature of the problem of retaliation are not well understood. Complete and 

accurate data are needed to understand the number of cases of retaliation related to sexual assault 

reports and the Services’ ability and procedures to respond to them. Data can be used to inform 

future policymaking on reporting, investigating, and resolving retaliation complaints.

• Data to be collected by sexual assault response coordinators (SARCs) and reported by the 

Services should include, but not be limited to, the following information:

1. whether a victim claims professional or social retaliation; 

2. narrative of the allegation, including the date of the retaliation;

3. recipient of each complaint—a supervisor or someone in the chain of command, an 

inspector general, a military investigator, the military police, or another individual or 

entity; 

4. gender of the victim of retaliation; 
7

SUMMARY OF PANEL RECOMMENDATIONS

5. gender of the retaliator(s); 

6. relationship between the victim of retaliation, victim of sexual assault, and the retaliator(s); 

7. relationship, if any, between the retaliator(s) and the alleged perpetrator of the underlying 

crime; 

8. whether the alleged retaliation is actionable under the Uniform Code of Military Justice; 

9. outcome of the retaliation report; and 

10. whether the outcome of the retaliation report was shared with the victim of retaliation.

Recommendation 28: The Secretary of Defense establish a policy that requires the DoD Office 

of Inspector General to investigate all complaints of professional retaliation related to sexual 

assault. The Secretary of Defense ensure that these investigations are prioritized and conducted 

by personnel with specialized training. The Secretary of Defense require the inspectors general 

to report the status of the investigations to the installation sexual assault response coordinators 

(SARCs) prior to each monthly case management group meeting.

• The investigations of professional retaliation complaints, currently conducted through the 

inspector general system, have many problems and limitations, including extensive delays 

and inadequate oversight. Requiring the DoD Office of Inspector General to investigate all 

professional retaliation complaints related to sexual assault would provide better insight into and 

control over these cases.

• In the past four years, the DoD Office of Inspector General and Service inspectors general have 

handled very few cases of retaliation related to sexual assault offenses. The recent increase in 

sexual assault reporting in DoD may presage a similar increase in the number of complaints about 

professional retaliation. DoD must ensure that adequate resources and properly trained personnel 

are available to effectively and efficiently receive, process, and investigate these complaints. 

• Professional retaliation complaints related to sexual assault are different from other complaints 

of professional retaliation because they often involve a traumatized victim and allegations of 

a violent crime. Therefore, when the inspector general is handling a professional retaliation 

complaint relating to a sexual assault, it is critical that only designated DoD Office of Inspector 

General investigators and supervisors, who receive specialized sexual assault response training, 

conduct the investigation.

• To ensure that professional retaliation complaints are addressed at case management groups, 

the inspectors general should be required to provide monthly updates to the installation sexual 

assault response coordinator (SARC), who should be responsible for monitoring and tracking 

retaliation complaints.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Recommendation 29: The Service Secretaries establish policies to ensure that personnel assigned 

by commanders to investigate retaliation complaints are properly trained on issues regarding 

retaliation relating to sexual assault.

• In cases of social retaliation, commanders are often in the best position to direct the investigation 

of, and response to, complaints from victims of retaliation relating to sexual assault.

• Commanders must ensure that the personnel they assign to investigate complaints of retaliation 

relating to sexual assault are properly trained to perform their duties and understand the 

sensitivities of such investigations.

Recommendation 30: The Secretary of Defense and Service Secretaries expand the expedited 

transfer program to include job retraining for Service members who belong to small specialty 

branches and to be made available, on a case-by-case basis, to bystanders and witnesses of sexual 

assault who experience retaliation.

• Expedited transfers provide an effective tool for mitigating retaliation, but a victim from a small 

specialty career field may continue to experience retaliation even after moving to a new unit 

or duty location. Expedited transfer rules should permit these Service members to receive job 

retraining.

• Some bystanders or witnesses to sexual assault may experience retaliation for reporting or 

providing testimony about what they observed, and expedited transfer rules should permit 

commanders to reassign personnel who experience such retaliation, if warranted.

Recommendation 31: The Secretary of Defense establish specific guidelines clarifying what 

information can be released to a person who files a retaliation complaint related to a sexual 

assault.

• Guidance under the Privacy Act about the public release of disciplinary information is vague, 

and the amount of information released to victims of retaliation on the final disposition and 

disciplinary response to a retaliation complaint varies widely. In many circumstances, victims of 

retaliation receive no information about administrative actions taken against offenders. 

• At a minimum, the victim of retaliation should be informed whether his or her retaliation 

allegation was substantiated, was unsubstantiated, or was dismissed because the investigating 

authority determined that the allegation did not rise to the level that warranted an investigation. 

• Greater transparency about disciplinary actions taken in response to instances of retaliation 

would make clear to all Service members that retaliation will not be tolerated and would increase 

confidence that action will be taken in response to retaliation allegations.
9

SUMMARY OF PANEL RECOMMENDATIONS

Recommendation 32: The Secretary of Defense begin tracking the Services’ implementation of 

the statutory requirement that general or flag officers review proposed involuntary separations of 

Service members who made unrestricted reports of sexual assault within the preceding year.

• Section 578 of the Fiscal Year 2013 National Defense Authorization Act directed the Secretary 

of Defense to develop a policy to require a general or flag officer, on request, to review the 

circumstances of, and grounds for, the proposed involuntary separation of a Service member who 

made an unrestricted report of sexual assault within the preceding year. However, DoD is not 

currently monitoring compliance with this requirement.

• Tracking general and flag officer reviews of proposed involuntary separations would provide 

important information about whether Service members are being subjected to involuntary 

separation in retaliation for reporting a sexual assault.

Recommendation 33: The Service Secretaries revise their regulatory definitions of maltreatment, 

which currently contain an overly narrow intent requirement.

• Regulatory definitions of maltreatment that were recently adopted by the Services require that 

an act be committed “with the intent to discourage reporting of a criminal offense or otherwise 

discourage the due administration of justice.” This intent requirement is overly narrow and is 

inconsistent with the definition of maltreatment in Article 93 of the Uniform Code of Military 

Justice. A less restrictive definition of maltreatment would appropriately cover a broader range of 

abusive, retaliatory acts. 

• A better definition of maltreatment that would not require such a narrow intent requirement 

would be: “Maltreatment, which is a form of retaliation, is treatment by peers or by other 

persons that, when viewed objectively under all the circumstances, is abusive, cruel, humiliating, 

oppressive, demeaning, or harmful to an individual and is done to discourage the individual from 

reporting a criminal offense or because the individual reported a criminal offense. Maltreatment 

under this instruction does not require that the individual was subject to the orders of the accused 

as is required for maltreatment under Article 93, UCMJ.”

Recommendation 34: Congress refrain from creating an enumerated offense prohibiting social 

retaliation in the Uniform Code of Military Justice.

• Commanders currently have adequate means at their disposal to take disciplinary and 

administrative action against members of their command who engage in social retaliation. 

Recommendation 35: The Secretary of Defense and Service Secretaries develop innovative and 

effective training on retaliation for commanders and all other Service members, including targeted 

training that may be used in response to problems of retaliation within an organization.

• Targeted training can be used to foster a command climate in which Service members understand 

the harm done by retaliation to its victims, to unit morale and cohesion, and to mission readiness. 

• New and innovative approaches to retaliation training must be developed to reduce the number 

of Service members who disregard or ignore training.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

• Commander training must educate leaders about the full range of options available for addressing 

retaliation, particularly when retaliatory acts are not prosecutable under the Uniform Code of 

Military Justice.

Recommendation 36: The Secretary of Defense revise the elements and burdens of proof for 

reprisal claims made under the Military Whistleblower Protection Act so that they parallel the 

elements and burdens of proof outlined in the Whistleblower Protection Act for DoD civilians. 

• The elements and burden of proof established by DoD policy for adjudicating Service member 

reprisal claims under the Military Whistleblower Protection Act are not the same as the standards 

for similar complaints from DoD civilians made under the Whistleblower Protection Act.

• For DoD civilian complaints made under the Whistleblower Protection Act, the complainant 

must prove by a preponderance of the evidence that the disclosure was a “contributing factor” in 

the adverse personnel action. The burden then shifts to the agency to demonstrate by clear and 

convincing evidence that it would have taken the same personnel action absent the disclosure. 

• For Service members’ complaints made under the Military Whistleblower Protection Act, all four 

elements—a protected communication; knowledge of the protected communication on the part 

of the responsible management official; a personnel action taken, threatened, or withheld; and 

a causal connection between the protected communication and the personnel action—must be 

established by a preponderance of the evidence.

• Legislative action would not be required to change DoD policy regarding the elements and 

burdens of proof for complaints made under the Military Whistleblower Protection Act.
11

Introduction I.

Retaliation against victims of sexual assault in the military is closely related to the issues at the heart of 

the JPP’s mandate. Retaliation can have severe and long-lasting effects on victims of sexual assault, it 

can discourage reporting by other military members who experience sexual assault, and it can damage 

unit morale and mission readiness.

Examining the issue of retaliation against victims of sexual assault presents several unique challenges. 

First, the scope of the problem is not well understood. A 2014 survey by the RAND Corporation 

indicated that 62% of active duty women who reported unwanted sexual contact to a military 

authority in 2014 perceived some form of retaliation.1 However, individuals testifying before the JPP 

gave varying accounts about the nature and prevalence of the problem. Second, the procedures for 

responding to retaliation allegations are not as well-defined or well-established as the procedures 

for responding to sexual assault allegations. DoD and the Services have no centralized channel for 

reporting and tracking retaliation complaints and outcomes, and the policies for addressing retaliation 

span multiple agencies within the military. Third, as the issue of retaliation receives increased attention, 

the military is still developing its policies and procedures for defining, responding to, and monitoring 

the problem.

In its review of the problem of retaliation in the military, the JPP sought to gain a cross-section of 

perspectives from multiple stakeholders. The JPP heard from more than 35 witnesses at its public 

meetings in April, May, and June of 2015, including victims of retaliation, special victims’ counsel, 

sexual assault response coordinators, victim advocates, commanders, noncommissioned officers, DoD 

personnel, and civilian experts. The JPP also submitted written requests for information to DoD and 

the Services about retaliation policies and procedures. The JPP conducted deliberative sessions from 

August 2015 through January 2016 to discuss the issues surrounding this topic.

In this report, the JPP considers the military’s processes for reporting, investigating, resolving, tracking, 

and preventing retaliation. In its numerous recommendations, the JPP takes into account the wide 

range of retaliatory conduct that a victim of sexual assault may experience and the broad time frame in 

which a victim may experience retaliation.

1 See U.S. Dep’t of Def., SAPRO, Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year

2014 at 10 (Apr. 22, 2015) [hereinafter FY14 SAPRO Report], available at http://sapr.mil/public/docs/reports/FY14_

Annual/FY14_DoD_SAPRO_Annual_Report_on_Sexual_Assault.pdf; see also infra Section III.

I. Introduction
12

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
13

Overview of Retaliation II.

A. DEFINITIONS AND FORMS OF RETALIATION 

The JPP reviewed different forms of retaliation related to sexual assault incidents.2 Retaliation is 

an “umbrella term”3 that covers a broad spectrum of behaviors, which can be grouped into three 

categories: social retaliation, professional retaliation, and criminal retribution. As the table below 

shows, these three categories encompass many forms of retaliatory behavior against victims.

Chart: Forms of Retaliation

Social Retaliation Professional Retaliation Criminal Retribution

• Disparate treatment by and 

among peers

• Exclusion from social 

acceptance, privilege, or 

friendship 

• Workplace incivility 

• Individuals distancing 

themselves from the victim

• Victim blaming

• Victim not invited to/

excluded from social 

activities or interactions

• Harassing comments on 

social media

• “Unfriending” on social 

media

• Interference with promotion

• Unwarranted disciplinary 

action

• Involuntary transfer or 

reassignment

• Unwarranted negative 

performance evaluation

• Unfair decision about pay, 

benefits, awards, or training 

• Making or threatening to 

make significant change in 

duties or responsibilities of a 

member not commensurate 

with the member’s grade

• Cruelty or maltreatment 

(Art 93)

• Destruction of property (Art 

109)

• Stalking (Art 120a)

• Assault (Art 128)

• Threats (Art 134)

• Obstruction of justice (Art 

134)

• Other state/federal crimes 

(Art 134)

In Section 1709 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014, 

Congress directed the Secretary of Defense to formally prescribe regulations prohibiting retaliation.4

In response, all of the military Services issued regulations defining and prohibiting ostracism, 

maltreatment, and professional retaliation.5

2 While this report often refers to retaliation experienced by a victim of sexual assault, the JPP recognizes that other 

individuals may experience retaliation related to sexual assault, including friends of the victim and witnesses who intervene 

on behalf of the victim.

3 U.S. Dep’t of Def., SAPRO, Retaliation Overview 1 (Apr. 10, 2015) [hereinafter SAPRO Retaliation Overview], available 

at http://jpp.whs.mil/Public/docs/03_Topic-Areas/06-Retaliation/20150410/12_SAPRO_Retaliation_InfoPaper.pdf; see also 

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 [hereinafter FY14 NDAA], § 1709(b), 127 

Stat. 672 (2013) (requiring the Secretary of Defense to define retaliation to include, at a minimum, professional retaliation, 

ostracism, and maltreatment).

4 FY14 NDAA, supra note 3, at § 1709(a). 

5 U.S. Dep’t of the Air Force, Air Force Guidance Memo. to AFI 36-2909, Professional and Unprofessional Relationships

II. Overview of Retaliation
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Social retaliation includes “ostracism and such acts of maltreatment . . . committed by peers of a 

member of the Armed Forces or by other persons because the member reported a criminal offense.”6

Among examples of social retaliation are excluding the victim from social activities or interactions, 

blaming the victim, harassing the victim, or insulting the victim.7

Professional retaliation, also known as reprisal, consists of “taking or threatening to take an adverse 

personnel action, or withholding or threatening to withhold a favorable personnel action, with respect 

to a member of the Armed Forces because the member reported a criminal offense.”8 Professional 

retaliation may involve interfering with the victim’s promotion; taking disciplinary actions against 

the victim; transferring or reassigning the victim; making unfair decisions concerning the victim’s pay, 

benefits, awards, and training; referring a victim for mental health evaluation; or changing the victim’s 

duties and responsibilities in a manner inconsistent with his or her grade.9

Criminal retribution may involve other offenses specifically criminalized by the Uniform Code of 

Military Justice (UCMJ), such as stalking, assaulting, or threatening the victim, or obstructing justice.10

The JPP focused on the issues surrounding social and professional retaliation, while recognizing that 

retaliation can rise to the level of other criminal offenses.

B. TIMING OF RETALIATION

Retaliation can occur before a sexual assault is formally reported, anytime during the investigative and 

judicial process, or even after the final adjudication of the sexual assault offense. 

The JPP heard testimony from several victims who experienced retaliation before or when they 

reported a sexual assault. A former Army officer told the JPP that after she reported to her commander 

inappropriate touching by a senior ranking officer, the commander told her, “I can remove you for 

cause and end your career right now, or you can find a way to deal with it.”11 Fearing the loss of her 

(June 19, 2015) [hereinafter AF Guidance Memo to AFI 36-2909], available at http://static.e-publishing.af.mil/

production/1/af_ja/publication/afi36-2909/afi36-2909.pdf; U.S. Dep’t of the Army, Army Dir. 2014-20, Prohibition

of Retaliation Against Soldiers for Reporting a Criminal Offense (June 19, 2014) [hereinafter Army Dir. 2014-

20], available at http://www.apd.army.mil/pdffiles/ad2014_20.pdf; U.S. Dep’t of the Navy, SECNAV Instr. 5370.7D, 

Military Whistleblower Protection Act (Dec. 4, 2014) [hereinafter SECNAV Instr. 5370.7D], available at http://doni.

daps.dla.mil/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05-300%20

Manpower%20Personnel%20Support/5370.7D.pdf; U.S. Coast Guard, ALCOAST 208/14, Military Whistleblower

Protection (May 2014) [hereinafter ALCOAST 208/14], available at http://jpp.whs.mil/Public/docs/07-RFI/Set_3/

Responses/RFI_Attachment_Q88_USCG.pdf; see also infra Section II.D and Appendix A. 

6 FY14 NDAA, supra note 3, § 1709(b); see also U.S. Dep’t of Def., Report to the President of the United States on

Sexual Assault Prevention and Response 115 (Nov. 25, 2014) [hereinafter FY14 POTUS Report], available at 

http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_SAPRO_Report.pdf.

7 SAPRO Retaliation Overview, supra note 3, at 1. 

8 FY14 NDAA, supra note 3, at § 1709(b); see also FY14 POTUS Report, supra note 6, at 115.

9 SAPRO Retaliation Overview, supra note 3, at 1.

10 See, e.g., 10 U.S.C. § 920a (UCMJ art. 120a) (Stalking); 10 U.S.C § 928 (UCMJ art. 128) (Assault); Manual for CourtsMartial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 110 (Threat, communicating); MCM pt. IV, ¶ 96 

(Obstructing justice). 

11 Transcript of JPP Public Meeting 21 (May 19, 2015) (testimony of Ms. V.P.).
15

II. OVERVIEW OF RETALIATION

career, the victim chose not to report two out of the three incidents she experienced over the next 

year.12

Another victim, a former Coast Guard member, spoke of being sexually harassed by her senior enlisted 

supervisor, who made sexual comments and touched her inappropriately.13 She described what was 

happening to her chief petty officer, but he took no action. When the situation worsened, she told 

her supervisor and the chief that the harassment needed to stop. In response, her supervisor verbally 

attacked and threatened her, stating that he would “go toe-to-toe with [her]” and “come at [her] with 

both barrels” if she made a report to the command.14

Victims may also experience retaliation when a sexual assault allegation is investigated or during 

subsequent legal proceedings. One victim testified that during the course of the investigation, everyone 

on the ship learned the intimate details of her assault. She told the JPP, “I was immediately treated 

differently by everyone. Nobody ever wanted to sit with me or to talk with me. Rumors were being 

spread around the ship about me[.]”15

A dependent spouse who testified before the JPP described how her husband experienced retaliation 

after she reported that her husband’s co-worker, a senior airman, had raped her.16 This retaliation from 

his chain of command persisted throughout the judicial process, even after the accused pled guilty. She 

noted that the retaliation “was so stressful that during the trial I almost gave up and walked away. I 

didn’t want to testify. I didn’t want to be a part of any of it[.]”17

Finally, victims may experience retaliation even after the judicial process has ended. As one presenter 

explained to the JPP, “Often retaliation occurs after the victim’s case is over, and especially if the 

victim’s perpetrator was acquitted. Then the victim really is branded a liar, and there might be even 

more of an effort to drive them out . . . of the Service if their command views them as untruthful[.]”18

Irrespective of when the retaliation began, several victims told the JPP that they continued to 

experience retaliation and its effects for years after they were sexually assaulted. An Air Force master 

sergeant testified, “I just want everyone to know that these things that happen, they don’t happen for 

a day, or a week, or a month, they happen for years[.]”19 Another victim, a retired Army captain, said, 

“Whistleblower retaliation and reprisal has now outlasted my military career, and I wonder when I get 

to move on with my life.”20

12 Transcript of JPP Public Meeting 22 (May 19, 2015) (testimony of Ms. V.P.).

13 Transcript of JPP Public Meeting 159–61 (May 19, 2015) (testimony of Petty Officer First Class S.F.).

14 Transcript of JPP Public Meeting 159–61 (May 19, 2015) (testimony of Petty Officer First Class S.F.).

15 Transcript of JPP Public Meeting 42 (May 19, 2015) (testimony of Petty Officer Third Class D.M.).

16 Transcript of JPP Public Meeting 191–98 (May 19, 2015) (testimony of Ms. A.H.).

17 Transcript of JPP Public Meeting 198 (May 19, 2015) (testimony of Ms. A.H.).

18 Transcript of JPP Public Meeting 93 (May 19, 2015) (testimony of Ms. Sara Darehshori, Senior Counsel, Human Rights 

Watch, U.S. Program).

19 Transcript of JPP Public Meeting 78 (May 19, 2015) (testimony of Master Sergeant T.S.).

20 Transcript of JPP Public Meeting 30 (May 19, 2015) (testimony of Ms. V.P.).
16

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

C. EFFECTS OF RETALIATION 

1. Effects on the Victim 

The JPP heard testimony that retaliation can cause alienation, heightened stress, anxiety, depression, 

and suicidal thoughts in sexual assault victims.21 Dr. Lilia Cortina, professor of psychology and 

women’s studies at the University of Michigan, testified that retaliation, including acts of social 

retaliation that often go undocumented—such as shunning, gossiping about, and blaming the victim—

may have the purpose or effect of eroding the victim’s interpersonal relationships.22

As a result, retaliation can interfere with a victim’s healing process.23 One presenter told the JPP that 

victims who do not receive support from their peers and community after reporting a sexual assault are 

more likely to develop post-traumatic stress disorder (PTSD).24 Dr. Veronique Valliere, a clinical and 

forensic psychologist, further explained, “The primary mitigator of trauma in sexual assault is social 

support and being believed. No matter how heinous the sexual assault is, if the person has appropriate 

social support, and if they are believed by the people they care about, their chance of developing PTSD 

drops dramatically.”25 Likewise, a Marine Corps sexual assault response coordinator (SARC) told the 

JPP that victims who are most successful in healing have certain common experiences: they turn to 

a support system soon after the sexual assault; they engage an advocate who is both competent and 

qualified to assist them; and they feel that they will be supported if they report the crime.26

The effects of retaliation on a victim can be particularly acute in the military environment because 

the accused and the victim often share the same community, the same peers, and the same mission.27

According to Dr. Valliere, “When you are raped by a stranger, you don’t have to deal with that in dayto-day life. [In the military, the victim] deals with the rape and the impact on her community and also 

the ongoing influence of the offender on her life outside of that specific assault.”28 Another presenter 

distinguished the effects of retaliation in the military from the effects of retaliation in the civilian world 

by noting that “in the military, unlike in the civilian world, if you experience retaliation, you can’t 

quit[.]”29

21 Transcript of JPP Public Meeting 119–21 (Apr. 10, 2015) (testimony of Dr. Lilia M. Cortina, Professor, University of 

Michigan); id. at 192–93 (testimony of Dr. Matthew F. Soulier, University of California, Davis).

22 Transcript of JPP Public Meeting 114 (Apr. 10, 2015) (testimony of Dr. Lilia M. Cortina, Professor, University of 

Michigan). 

23 See Transcript of JPP Public Meeting 243–44 (Apr. 10, 2015) (testimony of Ms. Marie A. Brodie, U.S. Marine Corps 

SARC, Marine Corps Base Camp Lejeune, North Carolina).

24 Transcript of JPP Public Meeting 15–16 (May 19, 2015) (testimony of Ms. Sara Darehshori, Senior Counsel, Human 

Rights Watch, U.S. Program).

25 Transcript of JPP Public Meeting 209 (Apr. 10, 2015) (testimony of Dr. Veronique N. Valliere, Valliere & Counseling 

Associates, Inc.).

26 Transcript of JPP Public Meeting 243–44 (May 19, 2015) (testimony of Ms. Marie A. Brodie, SARC, U.S. Marine Corps).

27 See Transcript of JPP Public Meeting 191 (Apr. 10, 2015) (testimony of Dr. Matthew F. Soulier, University of California, 

Davis).

28 Transcript of JPP Public Meeting 201 (Apr. 10, 2015) (testimony of Dr. Veronique N. Valliere, Valliere & Counseling 

Associates, Inc.).

29 Transcript of JPP Public Meeting 13 (May 19, 2015) (testimony of Ms. Sara Darehshori, Senior Counsel, Human Rights 

Watch, U.S. Program).
17

II. OVERVIEW OF RETALIATION

2. Effects on the Unit and on Military Readiness

Presenters explained how retaliation can have far-reaching effects beyond the harms done to the 

individual victim. Dr. Patricia Harned, chief executive officer of the Ethics and Compliance Institute 

(a nonprofit organization), testified that retaliation is a leading indicator of the health and well-being 

of an organization.30 Retaliation and fear of reporting erode trust in an organization, reduce employee 

engagement, and affect employees’ perceptions about the importance of ethical conduct within the 

organizational culture.31

Presenters told the JPP that retaliation in the military violates fundamental military values and 

undermines a commander’s ability to maintain good order and discipline within the unit. A Coast 

Guard commander told the JPP that “[r]etaliation is in direct conflict with the Coast Guard’s core 

values, honor, respect and the devotion to duty.”32 An Army commander stated that in addition to 

caring for victims, the Army must prevent incidents of retaliation and teach Service members to “treat 

each other with dignity and respect . . . because it is a core value of our Army and just simply the right 

thing to do.”33

Commanders also testified that retaliation harms mission readiness. According to a Navy commander, 

“Retaliation will destroy unit cohesion and is counter to every aspect of the Navy’s core values. And 

ultimately, this will affect mission accomplishment.”34 An Army commander further explained, “Sexual 

assault and harassment of any kind are cancers that destroy the very fiber of any organization and 

particularly military organizations that rely so heavily on small groups of close knit people who must 

trust each other with their lives. . . . [A] key aspect of care that must be addressed is retaliation[.]”35

3. Effects on Reporting and the Judicial Process

Sexual assault victims highlight fear of retaliation as a significant deterrent to reporting their 

victimization.36 According to the 2012 Workplace and Gender Relations Survey of Active Duty 

Members, 47% of active duty women who did not report an unwanted sexual contact gave fear of 

retaliation as a reason for not coming forward; 43% indicated that they did not report in part because 

they had heard about the negative experiences of other victims who made a report; and 28% indicated 

that they did not report in part because of a concern that their performance evaluation or chance for 

30 Transcript of JPP Public Meeting 149 (May 19, 2015) (testimony of Dr. Patricia Harned, Chief Executive Officer, Ethics & 

Compliance Institute).

31 Transcript of JPP Public Meeting 148 (May 19, 2015) (testimony of Dr. Patricia Harned, Chief Executive Officer, Ethics & 

Compliance Institute).

32 Transcript of JPP Public Meeting 363 (May 19, 2015) (testimony of Jeffrey C. Westling, Commander, U.S. Coast Guard).

33 Transcript of JPP Public Meeting 376–77 (May 19, 2015) (testimony of Colonel Brian Foley, Garrison Commander, U.S. 

Army).

34 Transcript of JPP Public Meeting 356 (May 19, 2015) (testimony of Captain Heidi Fleming, Commanding Officer, U.S. 

Navy). 

35 Transcript of JPP Public Meeting 376–77 (May 19, 2015) (testimony of Colonel Brian Foley, Garrison Commander, U.S. 

Army). 

36 Transcript of JPP Public Meeting 99–100 (Sept. 18, 2015) (statement of Hon. Elizabeth Holtzman, Chair of the JPP).
18

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

promotion would suffer as a result.37 As Dr. Valliere observed, “Each time retaliation occurs, the future 

victims get the message.”38

Retaliation and fear of retaliation may also deter a victim or witness from participating in an 

investigation or legal proceedings. Major General Jeffrey Snow, Director of DoD Sexual Assault 

Prevention and Response Office (SAPRO) from January 2014 to June 2015, noted that even behaviors 

that do not rise to the level of a criminal act can influence a victim’s decision to continue to participate 

in the military justice process.39 A Marine Corps SARC noted that out of the 95 sexual assault reports 

that reached final legal adjudication at Camp Lejeune in 2014, 21% of victims chose not to participate 

in the investigation or judicial proceeding. She suspected that retaliation was a reason but commented 

that further research is needed to understand these victims’ decisions.40 

A 2015 report by Human Rights Watch on retaliation against sexual assault victims in the military 

concluded that unless more is done to effectively address retaliation and fear of retaliation, recent 

dramatic improvements in sexual assault reporting rates may not be sustained.41 Thus, in the view 

of the researchers, “ending retaliation is critical to effectively addressing sexual assault in the US 

military.”42

D. CURRENT PROHIBITIONS ON RETALIATION 

To protect victims and others who report criminal conduct from professional retaliation, Congress 

enacted the Military Whistleblower Protection Act in 1988.43 Since then, Congress, DoD, and the 

Services have provided specific protections for victims of sexual assault who experience retaliation.44

37 See Defense Manpower Data Center, Survey Note on 2012 Workplace and Gender Relations Survey of Active Duty

Members 106–07 (Mar. 15, 2013), available at http://www.sapr.mil/public/docs/research/2012_workplace_and_gender_

relations_survey_of_active_duty_members-survey_note_and_briefing.pdf; see also Human Rights Watch, Embattled: 

Retaliation against Sexual Assault Survivors in the US Military 29 (May 2015) [hereinafter HRW Embattled], available 

at https://www.hrw.org/report/2015/05/18/embattled/retaliation-against-sexual-assault-survivors-us-military.

38 Transcript of JPP Public Meeting 209 (Apr. 10, 2015) (testimony of Dr. Veronique N. Valliere, Valliere & Counseling 

Associates, Inc.).

39 Transcript of JPP Public Meeting 59 (Apr. 10, 2015) (testimony of Major General Jeffrey Snow, Director, DoD Sexual 

Assault Prevention and Response Office (SAPRO)).

40 See Transcript of JPP Public Meeting 247–48 (May 19, 2015) (testimony of Ms. Marie A. Brodie, SARC, U.S. Marine 

Corps).

41 HRW, Embattled, supra note 37, at 4.

42 Id.

43 National Defense Authorization Act for Fiscal Year 1989, Pub. L. No. 100-456, § 846, 102 Stat. 1918 (1988), codified 

at 10 U.S.C. § 1034, as amended; see also U.S. Dep’t of Def., Dir. 7050.06, Military Whistleblower Protection (Apr. 

17, 2015) [hereinafter DoDD 7050.06], available at http://www.dodig.mil/Resources/PolicyReferences/whistleblower/

DoDD_7050_06.pdf.

44 In addition to the protections discussed in this section, legal protections for victims of retaliation are also found in the 

crime victims’ rights provisions under Article 6b of the UCMJ, enacted as required by the FY14 NDAA. Two of these 

rights, the right to be reasonably protected from the accused and right to be treated with fairness and with respect for the 

dignity and privacy of the victim of an offense under the UCMJ, are particularly relevant for individuals who experience 

retaliation after reporting a sexual assault. See 10 U.S.C. § 806b (UCMJ art. 6b).
19

II. OVERVIEW OF RETALIATION

1. Military Whistleblower Protection Act 

The Military Whistleblower Protection Act (MWPA), as amended, prohibits individuals from 

(1) interfering with a Service member’s lawful protected communication, or (2) taking or threatening 

to take any professional retaliatory actions against a Service member who makes a protected 

communication.45 The MWPA and its implementing directive, DoD Directive 7050.06, provide the 

basic framework for investigating reprisal complaints. The statute and directive address the role of 

the inspectors general (IGs) in investigating acts of reprisal.46 Both DoD IG and the Service IGs are 

authorized to investigate allegations of reprisal.47 While individual Service IGs can establish their own 

internal procedures for receiving, reporting, and investigating reprisal complaints,48 DoD IG maintains 

oversight of the Service IGs, ensuring that the investigator is outside the immediate chain of command 

of both the whistleblower and the accused.49 DoD IG also reviews and approves the results of all 

Service IG investigations of whistleblower complaints.50

Section 1715 of the FY14 NDAA specified that the MWPA provides protections for sexual 

assault victims.51 Under the provision, making a sexual assault report is included as a protected 

communication.52

The FY14 NDAA also expanded prohibited retaliatory personnel actions, which now include making 

or threatening to make a significant change in the duties or responsibilities of a Service member not 

commensurate with the member’s grade.53 In addition, the FY14 NDAA increased the time allowed for 

a Service member to make a whistleblower complaint from within 60 days of becoming aware of the 

adverse personnel action to within one year of becoming aware of the adverse personnel action.54 This 

change is particularly helpful for sexual assault victims, who may delay reporting of retaliation because 

they are experiencing trauma from the sexual assault offense or dealing with the investigative and 

judicial process, as well as trying to navigate the system to file a MWPA complaint. 

During the course of its deliberations, the JPP considered additional proposals to further amend the 

MWPA. These proposals are discussed later in this report.55

45 10 U.S.C. § 1034(a)–(b).

46 See 10 U.S.C. § 1034 and DoDD 7050.06. Both 10 U.S.C. § 1034 and DoDD 7050.06 detail the roles of the IGs, but do 

not specifically require the IGs to be the investigating agency for professional retaliation.

47 DoDD 7050.06 encl. 2, ¶ 3(c)(1).

48 Id.

49 Id. at encl. 2, ¶ 1(c)(1).

50 Id. at encl. 2, ¶ 1(d).

51 FY14 NDAA, supra note 3, at § 1715. The FY14 NDAA revisions were the first significant advances to military 

whistleblower rights since 1988, when the MWPA was established. See Government Accountability Project, “GAP Praises 

House Approval of Military Whistleblower Protection Act Makeover,” available at https://www.whistleblower.org/

blog/120013-gap-praises-house-approval-military-whistleblower-protection-act-makeover. Despite these revisions, there 

are still several differences between the protections for military whistleblowers and DoD civilian whistleblowers. These 

differences will be addressed later in the report. See infra Section IX.

52 FY14 NDAA, supra note 3, at § 1715. 

53 Id. at § 1714(a).

54 Id. at § 1714(b).

55 See infra Section IX.
20

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

2. Punitive Service Regulations 

To strengthen whistleblower protections, DoD Directive 7050.06 requires the Service Secretaries to 

maintain regulations that make punishable, under Article 92 of the UCMJ, acts that are prohibited 

under the MWPA.56 The FY14 NDAA also required that the Secretary of Defense prescribe regulations, 

or direct the Service Secretaries to prescribe regulations, that prohibit retaliation against individuals 

who report a criminal offense.57

In 2014, the Service Secretaries implemented new regulations prohibiting retaliation.58 Their definitions 

of retaliation (reproduced in Appendix A) are similar, but not identical. Although DoD is planning to 

issue uniform definitions, it has not done so to date.

56 DoDD 7050.06 encl. 2, ¶ 4(a).

57 FY14 NDAA, supra note 3, at § 1709(a).

58 AF Guidance Memo to AFI 36-2909, supra note 5; Army Dir. 2014-20, supra note 5; SECNAV Instr. 5370.7D, supra 

note 5; ALCOAST 208/14, supra note 5; see also infra Section VII.C.
21

Scope of the Problem III.

A. VARYING ACCOUNTS OF THE PROBLEM 

The JPP heard from many presenters about the prevalence of retaliation in the military. Several victims 

and special victims’ counsel (SVCs) testified in detail about retaliation that they witnessed or personally 

experienced. Some SARCs, victim advocates (VAs), commanders, and noncommissioned officers 

(NCOs), in contrast, told the JPP that they had not witnessed widespread retaliation against victims of 

sexual assault. 

1. Victims’ Personal Experiences

The JPP heard testimony from 13 victims, each of whom had experienced extensive retaliation after 

reporting a sexual assault.59 Most of them recounted social retaliation. An Air Force master sergeant, 

after reporting a sexual assault by a captain, testified that he was “regularly mocked, threatened, and 

. . . tormented by the captain who was allowed to walk by [his] office and look in on [him] and make 

fun of [him].”60 According to another victim, retaliation became “an integral part of [his] career”; 

he added, “I have had my manhood questioned for not defending myself during the sexual assault. I 

have had my intelligence insulted.”61 Although he transferred to a new unit, his story of reporting a 

sexual assault reached the new unit even before he had. He testified, “[T]he treatment I received when I 

arrived was unbearable. I was isolated . . . and considered a snitch[.]”62

Several victims also encountered professional retaliation. One victim testified that after his sexual 

assault report, he was assigned menial jobs not appropriate to his pay grade and experience. For 

example, for three months he was forced to wear a reflective vest and pick up trash on the base 

beautification detail.63 Another victim, a former Army officer, told the JPP that the perpetrator of 

her sexual assault was the officer responsible for the entire battalion’s training and mission readiness 

evaluations.64 After she reported his inappropriate touching, the officer delayed the scheduling of her 

unit’s evaluations and trainings, thereby affecting not only her own career advancement but also that 

of others within her unit.65 A third victim reported that after she reported a sexual assault, she “began 

receiving counseling and disciplinary actions for minor mistakes that would not normally bear a formal 

punishment.”66

59 See generally Transcript of JPP Public Meeting 20–230 (May 19, 2015). 

60 Transcript of JPP Public Meeting 35 (May 19, 2015) (testimony of Master Sergeant T.S.).

61 Transcript of JPP Public Meeting 186 (May 19, 2015) (testimony of Staff Sergeant N.L.).

62 Transcript of JPP Public Meeting 187 (May 19, 2015) (testimony of Staff Sergeant N.L.).

63 Transcript of JPP Public Meeting 35 (May 19, 2015) (testimony of Master Sergeant T.S.).

64 Transcript of JPP Public Meeting 21–22 (May 19, 2015) (testimony of Ms. V.P.).

65 Transcript of JPP Public Meeting 21–22 (May 19, 2015) (testimony of Ms. V.P.).

66 Transcript of JPP Public Meeting 48–49 (May 19, 2015) (testimony of Ms. C.B.).

III. Scope of the Problem
22

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

2. Other Stakeholders’ Perspectives

SVCs, SARCs, VAs, commanders, and NCOs who testified before the JPP expressed different 

opinions about the scope of the problem of retaliation. The table below represents these stakeholders’ 

interactions with victims of sexual assault who have experienced retaliation. While the information is 

anecdotal, the table captures their different perspectives.

Chart: Scope of the Problem: Perspectives of JPP Presenters67

Army Air Force Navy Marine Corps Coast Guard

SVCs

Represented 9 

clients since 

Dec. 2014, 

4 of whom 

experienced 

retaliation

Represented 

54 clients 

since 2013, 

11 of whom 

experienced 

retaliation

Represented 

49 clients since 

June 2014, 

11 of whom 

experienced 

retaliation

Represented 

60 clients since 

2013, at least 

3 of whom 

experienced 

retaliation

Represented 

20 clients since 

2013, 1 of whom 

experienced 

retaliation

SARCs 

Aware of 

4 reported 

retaliation 

complaints out 

of 54 cases 

reviewed at 

SARB since 2013

Aware of 1 

retaliation case 

as of June 2015; 

since 2006, 

less than 1% 

of unrestricted 

cases at base 

have involved 

retaliation 

Aware of 2 

reports of social 

retaliation out 

of 14 cases 

reviewed at 

CMG as of 

June 2015

Aware of 1 

open retaliation 

investigation out 

of an average 

of 65 cases 

reviewed at 

CMG as of 

June 2015

Has not dealt 

with many 

substantiated 

retaliation cases 

since 2005

VAs

Aware of 1 

instance of 

retaliation out of 

about 35 sexual 

assault cases in 

2 years

CDRs

Aware of 0 

retaliation 

reports to date 

Aware of 1 open 

retaliation case 

(in 2015)

Not addressed Aware of 1 

reprisal case

Aware of 1 

retaliation case 

NCOs

Witnessed 

retaliation as a 

first responder 

earlier in career

Aware of 1 

substantiated 

retaliation 

complaint out of 

20 sexual assault 

cases over 

24-year career

Has not received 

many retaliation 

reports from 

SARCs over 

24-year career

Aware of 0 

retaliation 

complaints out 

of 3 sexual 

assault cases 

over past 2 years 

Aware of 0 

retaliation 

complaints

Descriptions by some SVCs and victims’ legal counsel (VLCs)68 appearing before the JPP of their 

clients’ experiences reinforced the testimony heard from victims. For example, a Navy VLC testified 

67 See generally Transcript of JPP Public Meeting 231, 234, 237, 239–40, 242–43, 249–50 (May 19, 2015) (testimony of 

SARCs and Air Force VA); id. at 295–99, 304–05, 307–08, 314, 317 (testimony of NCOs); id. at 346, 359–62, 372, 374–

75, 388 (testimony of commanders); Transcript of JPP Public Meeting 230–70 (June 18, 2015) (testimony of SVCs).

68 Victims’ counsel within the Navy and Marine Corps are known as victims’ legal counsel (VLC). For convenience, this 

report refers generally to victims’ counsel across the Services as “SVCs.”
23

III. SCOPE OF THE PROBLEM

that 11 of the 49 clients he represented experienced retaliation.69 Most of these cases involved social 

retaliation: victims were ignored, isolated, and/or subject to rumors after reporting sexual assaults—

to the point that the command climate became “unbearable.”70 An Army SVC testified that four of 

the nine clients he represented between December 2014 and June 2015 experienced some type of 

retaliation, ranging from Facebook messages telling a male client to “man up and take it” to actual 

threats against a victim and the victim’s family.71

On the other hand, several presenters told the JPP that they were surprised to hear that so many 

victims experienced retaliation after reporting sexual assault. An Air Force SARC told the JPP that to 

her knowledge, less than 1% of the unrestricted cases at Seymour-Johnson Air Force Base involved 

retaliation.72 A Coast Guard command master chief, whose primary responsibility is to travel to all 

of the Coast Guard units within the southeastern United States and assess the command climate, told 

the JPP that in two years, he had not heard any complaint of retaliation or ostracism from the crew 

members.73 A Navy command master chief who has been involved with the Sexual Assault Prevention 

and Response (SAPR) program since 2009 stated that the dozen or so regional SARCs in his area of 

responsibility “have not dealt with a whole lot of retaliation.”74

When asked by the JPP about this limited knowledge of retaliation, a VA noted that, like sexual assault 

crimes, many incidents of retaliation may go unreported, and resources available for victims—such as 

victim advocates—may be underutilized.75 An Army SARC commented that victims of retaliation may 

not come forward because they do not want to be labeled as troublemakers.76 A Coast Guard SARC 

added that victims may be afraid that no one will believe them, especially because retaliation can be 

very subtle, very hard to identify, and very hard to prove.77

Like many of the SARCs, VAs, and NCOs, commanders appearing before the JPP generally recalled 

very few, if any, instances of retaliation in their commands. The installation commander from Eglin Air 

Force Base noted only one open retaliation complaint involving a sexual assault victim.78 The chief of 

staff from Marine Corps Base Quantico similarly said that over the past two years, only one victim of 

69 Transcript of JPP Public Meeting 230 (June 18, 2015) (testimony of Lieutenant Commander James Toohey, Victims’ Legal 

Counsel, U.S. Navy).

70 Transcript of JPP Public Meeting 230–31 (June 18, 2015) (testimony of Lieutenant Commander James Toohey, Victims’ 

Legal Counsel, U.S. Navy).

71 Transcript of JPP Public Meeting 241 (June 18, 2015) (testimony of Captain George “Rob” Lavine III, Special Victims’ 

Counsel, U.S. Army).

72 Transcript of JPP Public Meeting 234 (Apr. 10, 2015) (testimony of Ms. Nancy Pike, SARC, U.S. Air Force).

73 Transcript of JPP Public Meeting 306–07 (May 19, 2015) (testimony of Command Master Chief Jason D. Griffin, U.S. 

Coast Guard). 

74 Transcript of JPP Public Meeting 304 (May 19, 2015) (testimony of Command Master Chief Kevin Goodrich, U.S. Navy).

75 Transcript of JPP Public Meeting 338–39 (May 19, 2015) (testimony of Staff Sergeant LeeAnn B. Nelson, Uniformed 

Victim Advocate, U.S. Marine Corps).

76 Transcript of JPP Public Meeting 278 (May 19, 2015) (testimony of Sergeant First Class Bridgett Joseph, SARC, U.S. 

Army).

77 Transcript of JPP Public Meeting 276–77 (May 19, 2015) (testimony of Mr. Magnus Graham, SARC Coordinator, U.S. 

Coast Guard).

78 Transcript of JPP Public Meeting 346–47 (May 19, 2015) (testimony of Brigadier General David Harris, Commander, U.S. 

Air Force).
24

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

sexual assault had come forward alleging professional retaliation.79 The Army garrison commander for 

Fort Meade, Maryland, told the JPP that in December 2014, Fort Meade SARCs and VAs began asking 

victims if they had perceived any retaliation. No instances had been reported as of June 2015, though 

the commander noted that the sample size was small.80

The striking variation in the presenters’ perspectives highlights essential challenges to understanding 

retaliation. These varying accounts help illustrate how perception influences one’s understanding of 

the scope of the problem. An Air Force NCO commented that in many cases, “mild symptoms” of 

trauma from a sexual assault—including short-term absences or lack of focus—can be dealt with 

effectively at the immediate unit level.81 However, long-term and more significant symptoms can be 

harder to manage, in part because the commander or supervisor lacks information about the case.82

He concluded, “When you combine all those factors with a grieving, struggling victim, commanders 

and supervisors have to make very, very difficult decisions in order to document long term substandard 

performance and/or to protect mission impact. Mark downs on performance reports, reassignments to 

different duty sections, or other personnel actions are sometimes necessary. [These decisions] can be 

and many times are perceived as retaliation.”83

B. DATA AND SURVEY RESULTS

Assessing the scope of retaliation issues in the military is difficult because little objective data about the 

problem exist. The Services have not historically tracked or published data on retaliation complaints 

and report outcomes, and they could not provide the JPP with Service-wide data about retaliation 

complaints made since 2012.84 The JPP thus could not determine the number of sexual assault victims 

who made a retaliation claim after filing an unrestricted report, the types of retaliation alleged, the 

entities that conducted the ensuing investigations, or the final disposition of each case. 

At the JPP’s April 2015 meeting, Dr. Nathan Galbreath, Senior Executive Advisor for DoD SAPRO, 

said that he was not aware of a central repository within or among the Services for obtaining data 

79 Transcript of JPP Public Meeting 372 (May 19, 2015) (testimony of Colonel Allen Broughton, Chief of Staff, U.S. Marine 

Corps).

80 Transcript of JPP Public Meeting 378–79 (May 19, 2015) (testimony of Colonel Brian Foley, Garrison Commander, U.S. 

Army).

81 Transcript of JPP Public Meeting 299 (May 19, 2015) (testimony of Command Chief Master Sergeant Craig A. Neri, U.S. 

Air Force).

82 Transcript of JPP Public Meeting 299 (May 19, 2015) (testimony of Command Chief Master Sergeant Craig A. Neri, U.S. 

Air Force).

83 Transcript of JPP Public Meeting 299–300 (May 19, 2015) (testimony of Command Chief Master Sergeant Craig A. Neri, 

U.S. Air Force).

84 Services’ Responses to JPP Request for Information 81 (May 6, 2015). The Navy reported that it was unable to provide 

an accurate Service-wide response, but provided information for some Navy commands. Of these commands, there were 

a total of 21 allegations of reprisal or retaliation from October 1, 2013 through February 2015 (eight were reported as 

professional retaliation, 12 as social retaliation, and one as both). In all but two of the cases, the victim who experienced 

the retaliation was female. In four of the 21 allegations of retaliation, the retaliator was the perpetrator of the underlying 

sexual assault report. One of these cases resulted in non-judicial punishment, five resulted in unidentified action, and four 

resulted in no action being taken. Naval Criminal Investigative Service (NCIS) reported an additional five allegations: 

of these, one was considered “actionable” under the UCMJ and was dealt with via non-judicial punishment, and three 

resulted in no action. See Navy’s Response to JPP Request for Information 81 (May 6, 2015). 
25

III. SCOPE OF THE PROBLEM

on retaliation.85 He explained that DoD IG and the Service IGs keep information on professional 

retaliation, but data on social retaliation are “all over the place and . . . hard to put your finger on[.]”86

When asked whether DoD SAPRO plans to centralize retaliation data, Major General Snow observed 

that pulling together all information about professional and social retaliation complaints “will cause 

[DoD] to do things in a way we have not typically done.”87

Although actual report data are not maintained, recent voluntary surveys of Service members provide 

a sense of the scope of retaliation concerns. In fiscal year 2014, the RAND Corporation conducted 

the Military Workplace Study (RMWS), and its results were highlighted in DoD’s 2014 Report to the 

President of the United States on Sexual Assault Prevention and Response (FY14 POTUS Report) and 

DoD’s April 2015 Annual Report on Sexual Assault in the Military for Fiscal Year 2014 (FY14 SAPRO 

Report).88

According to the RMWS, 4.3% of active duty women indicated that they had experienced an 

unwanted sexual contact in the preceding year and reported it to a military authority.89 Among this 

group, 62% perceived some form of retaliation as a result of reporting the situation.90 A survey from 

fiscal year 2012 had yielded the same result on retaliation.91

The RMWS permitted respondents to report perceiving more than one type of retaliation. Of the 62% 

of active duty women who reported retaliation, 

• 53% perceived social retaliation;

• 32% perceived professional retaliation;

• 35% perceived adverse administrative action; and

• 11% perceived a punishment for infraction.92

85 See Transcript of JPP Public Meeting 88–89 (Apr. 10, 2015) (testimony of Dr. Nathan Galbreath, Senior Executive Advisor 

of DoD SAPRO).

86 See Transcript of JPP Public Meeting 74 (Apr. 10, 2015) (testimony of Dr. Nathan Galbreath, Senior Executive Advisor of 

DoD SAPRO).

87 Transcript of JPP Public Meeting 89 (Apr. 10, 2015) (testimony of Major General Jeffrey Snow, Director of DoD SAPRO).

88 FY14 POTUS Report, supra note 6, at 117; FY14 SAPRO Report, supra note 1, at 9–10.

89 FY14 SAPRO Report, supra note 1, at 8, 10.

90 FY14 POTUS Report, supra note 6, at 117; FY14 SAPRO Report, supra note 1, at 10. 

91 FY14 POTUS Report, supra note 6, at 116–17.

92 Id. at 117; FY14 SAPRO Report, supra note 1, at 10. The FY14 SAPRO Report noted that the RMWS provided the 

following as examples: professional retaliation—loss of privileges, denial of promotion/training, and transfer to a less 

favorable job; social retaliation—being ignored by co-workers and being blamed for the situation; adverse administrative 

actions—being placed on medical hold, placed on a legal hold, and transferred to a different assignment; infractions for 

which victims were cited—underage drinking or fraternization. It added: “Adverse administrative actions and punishment 

for infractions are not included under the category of ‘professional retaliation’ because these actions are not necessarily 

retaliatory. They could occur after a sexual assault report to address victim safety and health concerns or to address 

collateral misconduct under military law. However, if these actions are taken with the intention of penalizing a victim for 

reporting a sexual assault, they could be considered professional retaliation.” FY14 SAPRO Report, supra note 1, at 10, 

n.19.
26

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Chart: 2014 RAND Military Workplace Study Results

Total survey responders

The survey permitted respondents to report perceiving 

more than one type of retaliation.

Perceived 

retaliation

62 %

Did not perceive 

retaliation

38 %

53 %

32 % 35 %

11 %

Punishment

for

infraction

Adverse

administrative 

action

Professional

retaliation

Social 

retaliation

Types of Retaliation Perceived

of female survey responders indicated 

that they experienced an unwanted 

sexual contact and reported it to 

a military authority

4.3 %

Of the 4.3% of female survey 

responders who indicated that they 

reported an unwanted sexual contact

95.7 %

4.3 %

The FY14 POTUS Report and the FY14 SAPRO Report both noted the limitations of a survey 

that measures “perceived” retaliation. The FY14 POTUS Report stated that “[b]ecause the survey 

is confidential and the identities of the respondents are not known to [DoD], there is no way to 

determine if the behavior being perceived by respondents is in fact directly related to the reporting of 

a sexual assault or for some other reason not known to the respondent.”93 Similarly, the FY14 SAPRO 

Report observed that “the survey data collected provides broad perceptions of retaliation that do not 

necessarily align with actionable offenses that meet the elements of proof required for a charge of 

retaliation under military law.”94

The JPP asked the SARCs, commanders, and NCOs who did not witness widespread retaliation to 

explain the disparity between their experiences and the RMWS results. One presenter, an Army master 

sergeant, pointed to the limitations of measuring the scope of retaliation through surveys: 

93 FY14 POTUS Report, supra note 6, at 117.

94 FY14 SAPRO Report, supra note 1, at 9, n.18.
27

III. SCOPE OF THE PROBLEM

there’s a spectrum of retaliation that exists across the Services, and it could be as easy 

as . . . unfriending someone on Facebook, and then it can go all the way to the extreme 

of being . . . prevented from promotions. That’s an extreme, but all of those extremes fit 

into that [survey] statistic . . . that’s part of the trouble in trying to define how can we 

move forward in fixing this problem if the spectrum is so far reaching.95

C. RECENT EFFORTS TO COLLECT DATA

In 2015, DoD and the Services initiated efforts to collect data on retaliation. In March, the Under 

Secretary of Defense for Personnel and Readiness directed each of the Services to provide data on 

retaliation allegations associated with sexual assault reporting during the period from October 2014 

through February 2015.96 The data requested included the type of retaliation, the person or entity to 

whom the complaint was made, the relationship between the victim and retaliator, and the retaliation 

report outcome.97 The Under Secretary indicated that DoD SAPRO would consolidate and summarize 

the data call submissions for the FY14 SAPRO Report.98

However, the FY14 report, which was published in April 2015, included no specific data on retaliation 

allegations and report outcomes. Instead, it stated only DoD’s intent to conduct a systematic review of 

retaliation allegations made to the Service commands and IGs.99

The JPP issued a data call in May 2015 requesting similar information from each of the Services 

on retaliation complaints and outcomes. Specifically, the JPP requested data from fiscal years 2012 

to 2014 on the number of sexual assault victims who filed an unrestricted report, followed by a 

retaliation claim; the number and type of investigations into those complaints; the results of those 

investigations; the number of Service members who received adverse actions relating to their retaliatory 

misconduct; and the type of adverse actions the Service members received.100 The Services were unable 

to provide data in response to this request.101

95 Transcript of JPP Public Meeting 340–41 (May 19, 2015) (testimony of Master Sergeant Michelle M. Johnson, U.S. 

Army).

96 U.S. Dep’t of Def., Memorandum from Under Secretary of Defense for Personnel and Readiness on Data Call on 

Retaliation for the Fiscal Year 2014 Department of Defense Annual Report on Sexual Assault in the Military (Mar. 12, 

2015), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/06-Retaliation/20150410/11_SECDEF_Retaliation_

Memos.pdf.

97 Id. The full list of requested data was as follows: 1) type of alleged retaliation; 2) narrative of the allegation; 3) type of 

alleged retaliation report; 4) relationship between alleged retaliator and victim; 5) whether the alleged retaliation was 

actionable; 6) whether the alleged retaliator was also the alleged perpetrator of the underlying sexual assault report; 7) 

gender of alleged retaliator(s); 8) gender of the victim; and 9) retaliation report outcome. The Services were directed to 

obtain the information from Service IG complaints, commander-directed inquiries, criminal complaints made to military 

criminal investigative organizations (MCIOs), military equal opportunity complaints, responses to Congressional inquiries, 

and any other Service-specific sources for reports of retaliation associated with sexual assault reporting. Additionally, the 

Services were directed to provide information on any instances of retaliation discussed at case management group meetings 

held in March 2015 involving victims, witnesses/bystanders, and first responders associated with unrestricted reports of 

sexual assault.

98 Id. 

99 FY14 SAPRO Report, supra note 1, at 11. 

100 JPP Requests for Information 81, 82 (May 6, 2015).

101 Services’ Responses to JPP Requests for Information 81, 82 (May 6, 2015). 
28

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Some of the Services independently have begun to track retaliation data. The Air Force reported that 

starting in March 2015, the Air Force Sexual Assault Prevention and Response Office (AF SAPRO) 

began tracking reports made by victims who fall under the SAPR program.102 The Army reported 

that it established a formal mechanism to track all allegations of retaliation through the monthly 

case management groups (CMGs), which the Army calls sexual assault review boards (SARBs).103

The Marine Corps reported that it will use the Safety Screening Tool to monitor whether a victim 

is experiencing retaliation. If a victim experiences retaliation and opts to report it, he or she will be 

referred to the appropriate agency; the referral will be noted on the Services Provided Log and the 

status reported and tracked at the monthly CMG.104

In a public comment submitted to the JPP, Protect Our Defenders (POD) recommended that the 

Services begin systematically tracking reports of retaliation, including case outcomes. POD urged that 

this information be made available to the public in an anonymized form, much as is currently done in 

tracking sexual assault reports.105

It is important to track information about instances of retaliation related to sexual assault, and the 

lack of available data regarding cases of retaliation in DoD raises concerns. The problem of retaliation 

cannot be solved without a proper understanding of its nature, extent, and breadth. Having better data 

about retaliation is essential to developing any solution. 

The JPP recommends that starting in the next fiscal year, Congress require DoD and the Services to 

begin tracking retaliation reports and disposition information, including administrative and punitive 

actions. Specifically, the JPP recommends that DoD and the Services collect the following information: 

(1) whether a victim claims professional or social retaliation; 

(2) narrative of the allegation, including the date of the retaliation; 

(3) recipient of each complaint, whether a supervisor or someone in the chain of command, an 

inspector general, a military investigator, the military police, or another individual or entity; 

(4) gender of the victim of retaliation; 

(5) gender of the retaliator(s); 

(6) relationship between the victim of retaliation, victim of sexual assault, and the retaliator(s); 

(7) relationship, if any, between the retaliator(s) and the alleged perpetrator of the underlying 

crime; 

(8) whether the alleged retaliation is actionable under the UCMJ; 

(9) outcome of the retaliation report; and 

102 Air Force’s Response to JPP Request for Information 81 (May 6, 2015).

103 Army’s Response to JPP Request for Information 81 (May 6, 2015).

104 Marine Corps’ Response to JPP Request for Information 92(b) (Dec. 3, 2015).

105 Protect Our Defenders, Comment on Retaliation (submitted to JPP on Dec. 15, 2015) [hereinafter POD Comment], 

available at http://jpp.whs.mil/Public/docs/06-Public_Comment/Statement_POD_Retaliation.pdf.
29

III. SCOPE OF THE PROBLEM

(10) whether the outcome of the retaliation report was shared with the victim of retaliation.106

Data on retaliation related to sexual assault reports should be published in the annual SAPRO report. 

The data will be helpful in answering a number of important questions about retaliation and shaping 

future policymaking on reporting, investigating, and resolving incidents of retaliation. 

106 Other than the tenth criterion added to this list, the data collection proposed by the JPP largely mirrors that proposed by 

the Under Secretary of Defense for Personnel and Readiness in the March 2015 Memorandum on Data Call on Retaliation 

for the Fiscal Year 2014 Department of Defense Annual Report on Sexual Assault in the Military. See supra note 97.
30

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
31

Reporting Retaliation IV.

A. CHANNELS THROUGH WHICH VICTIMS CAN REPORT RETALIATION

Within the military, victims have multiple avenues through which to seek assistance and report 

retaliation: SARCs, VAs, SVCs, trial counsel, Victim and Witness Assistance Program (VWAP) 

personnel, legal assistance attorneys, commanders (including commanders outside the victim’s chain of 

command), superior commissioned officers,107 general or flag officers in certain circumstances,108 IGs, 

and military criminal investigative organizations (MCIOs) (if the allegation is criminal in nature).109

Victims can also report retaliation through hotlines maintained by DoD and the Services.110

Under DoD policy, SARCs or VAs assist the victim in completing DD Form 2910, “Victim Reporting 

Preference Statement,” when he or she reports a sexual assault.111 SARCS are responsible for entering 

information from the form into the Defense Sexual Assault Incident Database (DSAID) as an electronic 

record.112 In completing DD Form 2910, the victim must initial the following statement: “I understand 

that if I experience coercion, retaliation, reprisal, or ostracism from my supervisors or peers, I can 

report it to the SARC, Special Victims Counsel, my commander, Victim Witness Assistance Program 

personnel or my Service Inspector General.”113 However, SARCs do not record any information about 

allegations of retaliation on the form itself.

The JPP requested information from the Services on the potential benefits and challenges of assigning 

SARCs the responsibility of collecting retaliation reports related to sexual assault allegations from all 

107 If a Service member believes that he or she was wronged by a commander and is refused redress by that commander, he 

or she may file an Article 138 complaint. Article 138 is a provision in the UCMJ that allows Service members to make a 

formal complaint to any superior commissioned officer, who then forwards the complaint to the officer exercising general 

court-martial jurisdiction over the commander (the GCMCA). If the GCMCA determines that the underlying allegation 

can be investigated through another channel, the GCMCA will refer the matter to the appropriate authority. In sexual 

assault retaliation cases, the GCMCA would likely forward an allegation of a criminal retaliatory act to the MCIO for 

investigation and an allegation of professional retaliation to the IG. The GCMCA notifies the complainant, in writing, 

of the action taken (including referrals to other investigating components) and the reasons for taking such action. See 10 

U.S.C § 938 (UCMJ art. 138); see also Services’ Responses to JPP Requests for Information 75(e), 79(e) (May 6, 2015).

108 A victim may report to a general or flag officer if the retaliation, reprisal, ostracism, or maltreatment involves the 

administrative separation of a victim within one year of the final disposition of the sexual assault case. A victim may 

request that the general or flag officer review the separation. A victim may also report to a general or flag officer if the 

victim believes that there has been an impact on his or her military career because he or she reported a sexual assault or 

sought mental health treatment for sexual assault. The victim may discuss the impact with the general or flag officer. See

U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures encl. 4, ¶ 7(g)–

(h) (July 7, 2015) [hereinafter DoDI 6495.02], available at http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf. 

109 Id. at encl. 4, ¶ 7; see also Services’ Responses to JPP Request for Information 69 (May 6, 2015); U.S. Dep’t of Def., DD 

Form 2910, Victim Reporting Preference Statement (June 2014) [hereinafter DD Form 2910], available at http://www.

dtic.mil/whs/directives/forms/eforms/dd2910.pdf. 

110 Services’ Responses to JPP Requests for Information 68, 69 (May 6, 2015); see also DoD Safe Helpline, available at

https://safehelpline.org/.

111 DoDI 6495.02 encl. 6, ¶ 1(h). 

112 Id. at ¶ 4(u)(1)(a). 

113 DD Form 2910, Question 1(d)(6).

IV. Reporting Retaliation
32

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

reporting channels, entering the information into DSAID, and tracking the progress of the investigation 

and final disposition of retaliation complaints.114

In its response, DoD SAPRO listed the following benefits of having SARCs assist with collecting 

retaliation data:

• DoD policy already requires SARCs to collect information from victims who wish to make 

a retaliation report related to a report of sexual assault. The matter is then discussed at the 

monthly CMG meeting.

• SARC involvement avoids the need to create a new position to handle these assignments where 

there is no policy or law in place allowing confidential and/or privileged communication, 

such as the protections specified in DoD Instruction 6495.01 and the victim advocate–victim 

privilege in Military Rules of Evidence (M.R.E.) 514. 

• SARC involvement reduces the number of personnel to whom victims must explain their story.

• SARCs are certified in a standardized DoD process, have been screened and vetted, and have 

specialized training in supporting individuals who have been traumatized.115

DoD and the Services observed that assigning SARCs these additional responsibilities would also 

raise challenges. The Army noted that the Services would need to adopt standardized definitions for 

retaliation in order to provide SARCs a clear explanation of what constitutes retaliation for sexual 

assaults.116 The Navy commented that not all victims elect to work with SARCs. In those instances, 

the SARC would have the added burden of having to collect information from other sources.117 In 

some circumstances, such as when an IG investigates an allegation of reprisal against a victim of sexual 

assault, certain data may not be available to anyone—including SARCs—outside the investigation 

process.118

DoD SAPRO told the JPP that its forthcoming retaliation prevention and response strategy will 

establish a more formal data collection protocol that will make possible the tracking of cases beyond 

a particular installation. While DoD has not determined how the information will be collected, DoD 

SAPRO expects DSAID to play a role in data collection and tracking.119 DoD SAPRO estimated that 

24 months of development and testing will be required to modernize DSAID so that it can capture and 

report data about retaliation allegations, at a cost of about $914,000.120 In preparing its retaliation 

strategy, DoD is also identifying types of data that may be shared with SARCs without violating 

current law or interfering with the investigative process.121

114 JPP Request for Information 94 (Dec. 3, 2015).

115 DoD SAPRO’s Response to JPP Request for Information 94 (Dec. 3, 2015).

116 Army’s Response to JPP Request for Information 94 (Dec. 3, 2015).

117 Navy’s Response to JPP Request for Information 94 (Dec. 3, 2015).

118 DoD SAPRO’s Response to JPP Request for Information 94 (Dec. 3, 2015).

119 DoD SAPRO’s Response to JPP Request for Information 96 (Dec. 3, 2015). 

120 DoD SAPRO’s Response to JPP Request for Information 93 (Dec. 3, 2015). 

121 DoD SAPRO’s Response to JPP Request for Information 94 (Dec. 3, 2015). 
33

IV. REPORTING RETALIATION

The JPP recommends that the Services continue to provide multiple channels through which Service 

members may report instances of retaliation, thereby ensuring that they can make a report to someone 

in whom they feel comfortable confiding. However, the JPP believes that each installation should 

centralize its collection of reports and management of retaliation claims, just as the Services have done 

with sexual assault reports. In the JPP’s view, installation SARCs—who, as discussed below, maintain 

contact and a supportive relationship with victims even after disposition of their sexual assault case—

are best positioned to consolidate information from reports on retaliation and monitor each retaliation 

complaint throughout the investigative and judicial process until the complaint is resolved. 

Tasking SARCs to collect reports of retaliation provides a single access point and maximizes insight 

into the number and nature of complaints, while minimizing the sharing of sensitive information. The 

JPP recommends that SARCs enter information regarding retaliation complaints into DSAID so that 

DoD and the Services can maintain an accurate and up-to-date database on all retaliation complaints 

and outcomes. 

B. INSTRUMENTS FOR REPORTING OCCURRENCES OF RETALIATION

The Services do not use a standardized form to record information about retaliation against victims 

of sexual assault.122 The inspectors general for the Army, Air Force, Navy, and Marine Corps do have 

standardized complaint forms, but these not tailored to allegations of retaliation against victims of 

sexual assault.123 In addition, the Services do not generally use standardized forms to record complaints 

of retaliation that are received through the various reporting channels other than the IGs.124

The Air Force was the only Service that provided the JPP with a form used by SARCs who receive 

complaints about retaliation. When victims have an open sexual assault case with the CMG and are 

willing to participate in the interview, Air Force SARCs complete a voluntary “Victim Experience 

Interview” form.125 It includes questions about whether the victim had any negative professional or 

social experiences following his or her report of a sexual assault and whether the victim referred the 

matter to anyone.126 Air Force SARCs are required to provide data from the form to AF SAPRO on a 

monthly basis.127

Some presenters, including SARCs from different Services, told the JPP that a standardized form and 

set procedures for retaliation complaints across all Services are needed so that the same data will be 

collected for each retaliation allegation.128 However, in response to a JPP request for information 

122 Services’ Responses to JPP Request for Information 92(a) (Dec. 3, 2015).

123 Id. 

124 Id.

125 See U.S. Dep’t of the Air Force, Memorandum on Change 1 to 27 February 15 Memorandum—Updated Procedures 

Regarding Reporting and Tracking Victim Retaliation in Sexual Assault Cases 7 (Mar. 17, 2015) [hereinafter AF Memo 

on Updated Procedures], available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/06-Retaliation/20150806/05_Memo_

AFSAPR_Change1_Memo20150227_20150317.pdf. 

126 See id. at 8–11. The Victim Experience Interview also includes questions about the relationship between the victim and 

the person with whom the victim had negative experiences, the gender of the person with whom the victim had negative 

experiences, and whether the person with whom the victim had negative experiences is the perpetrator of the underlying 

sexual assault. 

127 Id. at 7.

128 Transcript of JPP Public Meeting 235 (May 19, 2015) (testimony of Ms. Nancy Pike, SARC, U.S. Air Force); id. at 245 
34

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

on developing uniform procedures for victims of sexual assault who wish to report retaliation, 

DoD agencies and the Services provided different opinions about whether and how to implement a 

standardized form. 

The Navy commented that using a standardized form might delay the process of remedying the 

retaliation. In addition, the Navy noted that a standardized form could have a chilling effect on 

reporting, since some victims might not be comfortable with putting in writing a complaint against the 

command.129

DoD SAPRO and some of the Services expressed reservations about using an existing form—such as 

DD Form 2910—to record allegations of retaliation. They noted that DD Form 2910 is completed at 

the beginning of the process of reporting a sexual assault, while retaliation may occur after a report is 

made.130

However, other Services viewed DD Form 2910 as an appropriate place for a victim to report 

retaliation.131 The Army noted that using it would enable the SARC to establish a link between a 

sexual assault and a retaliation case. In addition, the Army commented that using a single system 

would enable data queries to take place without any issue of incompatibility between systems.132

To facilitate the reporting and tracking of retaliation claims related to a sexual assault, the JPP 

recommends that DoD and the Services develop a standardized form to ensure that uniform 

information is collected from all Service members who complain of such retaliation. The form should 

be updated to reflect the status of the case throughout the investigative and judicial process for the 

retaliation complaint, until there is a final disposition of the retaliation complaint. Using a standardized 

retaliation form would enable DoD and the Services to monitor the status of each individual retaliation 

case, while also collecting the data necessary to properly assess the overall scope of retaliation in the 

military related to sexual assault.

The JPP recommends that the standardized retaliation form be maintained in DSAID and linked to DD 

Form 2910—the form that is used to initially report the sexual assault. Linking the retaliation form to 

DD Form 2910 would ensure that the retaliation allegation is analyzed and monitored in the context 

of the information about the underlying report of sexual assault. 

The standardized form should provide retaliation victims with the option to file either an informal or a 

formal report, similar to Service members’ options for filing equal opportunity complaints. An informal 

report would facilitate resolution of the complaint at the lowest level possible by offering the victim 

and the commander the opportunity to use a mediator. 

The JPP notes two advantages of allowing both a formal and an informal process for reporting and 

investigating retaliation related to a sexual assault. First, additional reporting options may lead to 

an increase in reporting, since victims would be able to address retaliation without elevating their 

complaints to the level of a formal command, IG, or criminal investigation. Second, commands might 

(testimony of Ms. Marie A. Brodie, SARC, U.S. Marine Corps).

129 Navy’s Response to JPP Request for Information 92(b) (Dec. 3, 2015).

130 DoD SAPRO’s, Air Force IG’s, and Marine Corps’ Responses to JPP Request for Information 92(b) (Dec. 3, 2015).

131 Air Force Headquarters Sexual Assault Prevention and Response Office’s and Army’s Responses to JPP Request for 

Information 92(b) (Dec. 3, 2015).

132 Army’s Response to JPP Request for Information 92(b) (Dec. 3, 2015).
35

IV. REPORTING RETALIATION

be more willing to accommodate victims’ concerns if they could do so through informal, rather than 

formal, investigations. 

The JPP understands the importance of a commander’s retaining the authority to initiate a separate 

investigation or refer the matter to the appropriate investigating agency if the commander discovers 

egregious misconduct associated with the retaliation complaint. Therefore, when a victim of retaliation 

files an informal report, the commander must inform the victim that the command will address the 

victim’s concerns using the informal investigation process, but may also initiate a separate formal 

investigation if that is deemed necessary.
36

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
37

Roles and Responsibilities of Personnel V. Who Respond to Retaliation Reports

Preventing or properly responding to instances of retaliation against sexual assault victims in the 

military may involve a number of individuals whose roles often overlap. The JPP received information 

and heard testimony about the roles in addressing retaliation of SARCs, VAs, SVCs, trial counsel, 

NCOs, and commanders.

A. SEXUAL ASSAULT RESPONSE COORDINATORS AND VICTIM ADVOCATES

As discussed above, SARCs and VAs play a central role in informing victims of retaliation about 

available resources, providing victims with referrals for support and services, and assisting victims in 

making retaliation reports.133 DoD Instruction 6495.02 on Sexual Assault Prevention and Response 

Program Procedures requires SARCs and VAs to inform victims of the channels available to report 

instances of retaliation, reprisal, ostracism, and maltreatment.134

The Air Force provided the JPP with a written policy that further details specific roles for Air Force 

SARCs and VAs in reporting and tracking retaliation.135 During initial intake with the victim and once 

a month afterward, an Air Force SARC or VA is responsible for discussing the definition of retaliation 

and reprisal with the victim, asking the victim if he or she has experienced any form of retaliation, 

notifying the victim of different reporting options, and assisting in reporting the retaliation if the 

victim so chooses.136 If the victim discusses a retaliation incident with the SARC or VA but elects not to 

make a report, the communication remains privileged and cannot be disclosed.137 Air Force SARCs are 

responsible for tracking retaliation reports throughout the investigative process and making periodic 

updates to AF SAPRO.138

SARCs have a duty to coordinate and monitor the response efforts of different stakeholders in the 

command to aid sexual assault victims.139 In order to fulfill their duties, all SARCs are required, 

under DoD policy, to have direct and unimpeded access to the installation commander and immediate 

commander of both the victim and the accused.140

SARCs’ responsibilities include coordinating care for victims of retaliation, even after the adjudication 

of the underlying sexual assault offense. SARCs testified that the services they provide to victims of 

retaliation—including referrals to SVCs and assistance with expedited transfers—remain available after 

133 See supra Section IV.

134 DoDI 6495.02 encl. 4, ¶ 7.

135 AF Memo on Updated Procedures, supra note 125, at 1–4.

136 Id. at 1–2; see also Air Force’s Response to JPP Request for Information 69 (May 6, 2015).

137 AF Memo on Updated Procedures, supra note 125, at 2.

138 Id. at 4; see also Transcript of JPP Public Meeting 234–35 (May 19, 2015) (testimony of Ms. Nancy Pike, SARC, U.S. Air 

Force SARC).

139 See DoDI 6495.02, ¶ 4(g).

140 Id. at ¶ 4(h).

V. Roles and Responsibilities of Personnel Who Respond to Retaliation Reports
38

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

a case is adjudicated or closed.141 An Army SARC told the JPP that she stays in contact with victims of 

retaliation, even after their cases are closed or they have obtained an expedited transfer.142

Victims’ communications with SARCs and VAs are privileged under M.R.E. 514.143 Therefore, victims 

who disclose retaliation to SARCs and VAs can request that their disclosures remain confidential. 

A Marine SARC told the JPP that often a Marine or sailor tells a VA that he or she is experiencing 

retaliation, but asks the VA not to share this information or act on it.144

The JPP heard testimony from both military and civilian SARCs.145 A Navy SARC told the JPP that 

she believes she has certain advantages as a civilian: victims are more willing to speak to her about 

retaliation, and she is never viewed as a “troublemaker” by the command for reporting retaliation.146

An Army SARC, in contrast, emphasized that the most important thing is having the “right person” in 

the position—either uniformed or civilian—who can be “professional and objective” and “get [victims] 

what they need.”147

B. SPECIAL VICTIMS’ COUNSEL

SVCs provide victims of retaliation with a broad range of legal assistance. SVCs maintain an ongoing 

relationship with victims of sexual assault. Therefore, when a victim of sexual assault experiences 

retaliation, SVCs may provide assistance soon after the retaliation occurs, during the investigative and 

adjudicative phases, or even after the sexual assault case is closed.148

In offering aid, SVCs may counsel the victim on options to address retaliation and provide assistance in 

filing complaints.149 They can also advocate directly to the command to ensure the victim’s rights have 

been safeguarded and to suggest an appropriate response to the retaliation allegation.150

In addition, SVCs can offer victims other legal services in connection with their retaliation concerns. If 

the victim requests an expedited transfer because of retaliation, the SVC can negotiate with a landlord 

to get a victim out of a lease, thereby minimizing the financial impact of transferring to a new duty 

station.151 For a victim who does not transfer, SVCs can coordinate with the command and personnel 

141 See Transcript of JPP Public Meeting 262 (May 19, 2015) (testimony of Sergeant First Class Bridgett Joseph, SARC, U.S. 

Army); id. at 265 (testimony of Mr. Magnus Graham, SARC Coordinator, U.S. Coast Guard).

142 Transcript of JPP Public Meeting 262 (May 19, 2015) (testimony of Sergeant First Class Bridgett Joseph, SARC, U.S. 

Army).

143 MCM, supra note 10, Mil. R. Evid. 514; see also DoDI 6495.02 encl. 4, ¶ 1(b)(4).

144 Transcript of JPP Public Meeting 243 (May 19, 2015) (testimony of Ms. Marie A. Brodie, SARC, U.S. Marine Corps).

145 See generally Transcript of JPP Public Meeting 231–94 (May 19, 2015).

146 Transcript of JPP Public Meeting 269–70 (May 19, 2015) (testimony of Ms. Kim Agnew, SARC, U.S. Navy).

147 Transcript of JPP Public Meeting 271–73 (May 19, 2015) (testimony of Sergeant First Class Bridgett Joseph, U.S. Army 

SARC).

148 Services’ Responses to JPP Requests for Information 71 (May 6, 2015); see also 10 U.S.C. § 1044(e).

149 Services’ Responses to JPP Requests for Information 71 (May 6, 2015).

150 Id.

151 Transcript of JPP Public Meeting 53–54 (May 19, 2015) (testimony of Ms. Meghan Rhoad, Researcher, Human Rights 

Watch, Women’s Rights Division).
39

V. ROLES AND RESPONSIBILITIES OF PERSONNEL WHO RESPOND TO RETALIATION REPORTS

offices to obtain alternate working arrangements.152 SVCs can also aid a victim with his or her 

application to the Board for Correction of Military Records (BCMR) to upgrade a general discharge to 

an honorable discharge.153

The JPP heard from several SVCs who explained that their services range from the simple to 

complicated, depending on the victim’s unique and specific needs.154 A Navy VLC commented that 

most retaliation allegations he has addressed have been dealt with directly through the chain of 

command and that most of his cases have been resolved by transferring the victim, at his or her 

request, to another unit or duty station.155

Other SVCs described some of their cases as more complex, requiring creative solutions to resolve the 

problem.156 An Air Force SVC told the JPP about a complicated retaliation case in which his client 

sought an expedited transfer out of concerns about retaliation. However, the client did not believe 

that simply transferring to a new location would suffice, because his career field was so small that his 

colleagues in his new location would know of his situation. The client sought a transfer to another 

career specialty, but his request was denied because he was in a “critically manned” career field.157

With the SVC’s assistance, and with the support of the client’s chain of command, an exception 

to policy was granted and the client’s request approved. He transferred to another career field and 

ultimately chose to remain in the Service.158

SVCs can also help by communicating with commands about retaliation concerns within particular 

units.159 For example, when one of the Army SVC’s clients was subjected to demeaning comments 

and rumors, the SVC advised the command that unit personnel needed to be trained about an Army 

directive prohibiting retaliation. The command agreed and held a stand-down training day soon 

after.160

The SVCs testifying before the JPP agreed that in most cases, allegations of retaliation are most 

effectively addressed through the chain of command.161 The SVCs told the JPP that they generally 

felt commands were responsive to their requests, that they usually could work well with their clients’ 

152 Transcript of JPP Public Meeting 53–54 (May 19, 2015) (testimony of Ms. Meghan Rhoad, Researcher, Human Rights 

Watch, Women’s Rights Division).

153 Transcript of JPP Public Meeting 53–54 (May 19, 2015) (testimony of Ms. Meghan Rhoad, Researcher, Human Rights 

Watch, Women’s Rights Division).

154 See generally Transcript of JPP Public Meeting 229–314 (June 18, 2015).

155 Transcript of JPP Public Meeting 232–33 (June 18, 2015) (testimony of Lieutenant Commander James Toohey, Victims’ 

Legal Counsel, U.S. Navy).

156 Transcript of JPP Public Meeting 246–48 (June 18, 2015) (testimony of Captain Micah Smith, Special Victims’ Counsel, 

U.S. Air Force).

157 See also infra Section VII.A. 

158 Transcript of JPP Public Meeting 246–48 (June 18, 2015) (testimony of Captain Micah Smith, Special Victims’ Counsel, 

U.S. Air Force).

159 See Services’ Responses to JPP Request for Information 71 (May 6, 2015).

160 Transcript of JPP Public Meeting 242–43 (June 18, 2015) (testimony of Captain George “Rob” Lavine III, Special Victims’ 

Counsel, U.S. Army).

161 See generally Transcript of JPP Public Meeting 297–99 (June 18, 2015).
40

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

command leadership, and that rank did not affect their ability to address retaliation issues with higherranking officers.162

Reflecting on the influence and credibility of SVCs, a Human Rights Watch presenter emphasized the 

“clout” that SVCs are often able to exercise on behalf of their clients when dealing directly with the 

command: “[SVCs] were able to raise issues with commanders that victims themselves had found 

unable to bring[.] . . . [F]or example, if [a victim] had requested a change in housing, it might have 

been viewed as a frivolous request. When it came through their attorney, it was viewed as something 

that should be taken seriously.”163

C. TRIAL COUNSEL 

Trial counsel can also assist victims in identifying instances of retaliation and refer allegations for 

investigation to law enforcement, IGs, or the chain of command.164 Trial counsel are responsible for 

ensuring that the victim is reasonably protected from the accused under Article 6b of the UCMJ, and 

for ensuring compliance with all notifications and procedures required by the Victim and Witness 

Assistance Program.165 In addition, trial counsel inform victims that military protective orders and 

civilian restraining orders are available to them to prevent retaliation.166

Once investigations are complete, trial counsel evaluate the evidence to determine if the retaliatory 

conduct meets the elements of a charge under the UCMJ, a regulatory violation, or any other 

inappropriate noncriminal conduct.167 Trial counsel then advise commanders on how to proceed 

concerning the allegations.168

D. COMMANDERS 

Commanders are responsible for safeguarding the safety and well-being of all members of their 

command, including victims of sexual assault. Commanders are also responsible for maintaining good 

order and discipline in their units and for appropriately disposing of all allegations of offenses under 

the UCMJ.169

Commanders testifying before the JPP described several approaches to fostering a command climate in 

which victims feel they can report sexual assault without fear of retaliation and report retaliation when 

it does occur. 

162 See generally Transcript of JPP Public Meeting 295–96 (June 18, 2015).

163 Transcript of JPP Public Meeting 56–57 (May 19, 2015) (testimony of Ms. Meghan Rhoad, Researcher, Human Rights 

Watch, Women’s Rights Division).

164 Though the JPP did not hear testimony from any trial counsel, the Services provided information on the role of trial 

counsel in addressing retaliation. See Services’ Responses to JPP Request for Information 71 (May 6, 2015).

165 Services’ Responses to JPP Request for Information 71 (May 6, 2015).

166 Id.

167 Id.

168 Id.

169 10 U.S.C. § 830(b) (UCMJ art. 30(b)). 
41

V. ROLES AND RESPONSIBILITIES OF PERSONNEL WHO RESPOND TO RETALIATION REPORTS

Commanders emphasized the importance of educating personnel at all levels of the command about 

social and professional retaliation.170 An Air Force commander described the experience of a sexual 

assault victim who recently was the subject of gossip and ostracized by her peers.171 After speaking 

with the victim, the commander held a unit town hall meeting where he reiterated his policy on 

professionalism in the workplace. The commander and SARC also visited each section of the squadron 

to speak individually with unit members about retaliation. Afterward, the commander and the SARC 

followed up with the victim on multiple occasions, and the victim reported that the gossip and 

ostracism had ended.

Similarly, a Coast Guard commander testified that when he sensed that a few members of the senior 

enlisted leadership were taking sides following a sexual assault prosecution, he held an all-hands 

meeting with the officers and the chiefs to reiterate his command philosophy regarding respect 

and retaliation.172 The commander reported that this intervention stopped the rumors, prevented 

retaliation, and ultimately enhanced trust between the command and the crew.173

Commanders also spoke of their responsibility for developing an appropriate plan of action to 

investigate allegations of retaliation within their command.174 For example, an Air Force commander 

reported that after personally meeting with a victim who alleged a retaliatory personnel action, he 

opened a commander-directed investigation at her request. In order to ensure the independence of 

the investigation, he assigned a senior official outside of the victim’s organization as the investigating 

officer.175

Finally, the commanders testified that when allegations of retaliation are substantiated, they are 

responsible for disposing of allegations through court-martial, non-judicial punishment, and 

administration action. However, they provided no specific examples of dispositions of such cases 

within their commands.

E. NONCOMMISSIONED OFFICERS 

Many initiatives by DoD and the Services focus on the essential role played by NCOs in preventing and 

responding to retaliation against sexual assault victims.176 NCOs down to the lowest unit level need 

to be able to recognize retaliation when it occurs and closely monitor potential problems in command 

170 See Transcript of JPP Public Meeting 353 (May 19, 2015) (testimony of Captain Heidi Fleming, Commanding Officer, U.S. 

Navy).

171 Transcript of JPP Public Meeting 348–49 (May 19, 2015) (testimony of Brigadier General David Harris, Commander, U.S. 

Air Force).

172 Transcript of JPP Public Meeting 366–67 (May 19, 2015) (testimony of Captain Jeffrey Westling, Commander, U.S. Coast 

Guard).

173 Transcript of JPP Public Meeting 366–67 (May 19, 2015) (testimony of Captain Jeffrey Westling, Commander, U.S. Coast 

Guard).

174 Transcript of JPP Public Meeting 351 (May 19, 2015) (testimony of Brigadier General David Harris, Commander, U.S. Air 

Force). 

175 Transcript of JPP Public Meeting 346–47 (May 19, 2015) (testimony of Brigadier General David Harris, Commander, U.S. 

Air Force).

176 See, e.g. U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response 

(Dec. 3, 2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_

SecDef_Initiatives.pdf.
42

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

climate. Because NCOs frequently interact with the enlisted members of the command, they can help 

commanders stay abreast of issues affecting those members, such as retaliation.177

Highlighting this point, an Army master sergeant told the JPP that “[a] commander may not see . . . 

the 180 Soldiers in their command in a day [or] in a week . . . on an individual basis, but that squad 

leader sees them every single day from morning till bedtime.”178 She testified that since NCOs act as 

the “daily connection with the Soldier,” retaliation “cannot be combatted . . . without buy-in from the 

non-commissioned officer.”179

NCOs also assist commanders by developing policies and training to prevent retaliation before it 

occurs. A Marine staff sergeant serving as a uniformed VA testified that she constantly trains Marines 

about the command philosophy on retaliation—stressing that the command has zero tolerance for 

retaliation or any type of re-victimization.180

Further commenting on the role of NCOs, the Army master sergeant noted that the Army had recently 

sent some of its junior squad leaders to Washington, DC, to help design training and policies on 

retaliation.181 The Army’s initiative reflects an effort to move away from the traditional hierarchal, topdown approach to training and toward a more grassroots approach, encouraging young leaders to find 

solutions that will resonate with their soldiers when dealing with problems like retaliation.182

177 See generally Transcript of JPP Public Meeting 324–25 (May 19, 2015).

178 Transcript of JPP Public Meeting 324 (May 19, 2015) (testimony of Master Sergeant Michelle M. Johnson, U.S. Army). 

179 Transcript of JPP Public Meeting 324 (May 19, 2015) (testimony of Master Sergeant Michelle M. Johnson, U.S. Army).

180 Transcript of JPP Public Meeting 325 (May 19, 2015) (testimony of LeeAnn B. Nelson, Uniformed Victim Advocate, U.S. 

Marine Corps).

181 Transcript of JPP Public Meeting 314–16 (May 19, 2015) (testimony of Master Sergeant Michelle M. Johnson, U.S. 

Army). 

182 Transcript of JPP Public Meeting 314–16 (May 19, 2015) (testimony of Master Sergeant Michelle M. Johnson, U.S. 

Army). 
43

Investigating and Monitoring Retaliation VI.

When a sexual assault victim reports retaliation, the allegation may be investigated by the MCIO, 

an IG, or the commander, depending on the type of retaliation.183 DoD instructions require the 

MCIOs to investigate retaliation complaints of certain criminal violations, such as threats, assaults, 

or damage to property.184 Usually, the IG investigates allegations of professional retaliation, and the 

command investigates allegations of social retaliation.185 This section discusses these different types 

of investigations, along with the role of the case management groups, which monitor the status of 

retaliation cases at an installation or within an organization.

A. INVESTIGATIONS BY MILITARY CRIMINAL INVESTIGATIVE 

ORGANIZATIONS

DoD policy requires specially trained agents from the Services’ MCIOs to receive all sexual assault 

reports and investigate all unrestricted sexual assault reports within their jurisdiction.186 When these 

agents conduct an initial interview of a victim following a sexual assault report, they provide a DD 

Form 2701, which advises the victim to contact the investigator if he or she is threatened or harassed 

as a result of making the report.187

DoD policy does not specifically require MCIOs to investigate reports of retaliation related to a 

sexual assault.188 Instead, DoD policy states that “when an MCIO initiates an adult sexual assault 

investigation, it will also initiate and conduct subsequent investigations relating to suspected threats 

against the sexual assault victim, to include minor physical assaults and damage to property.”189 When 

an MCIO receives a retaliation complaint, the MCIO determines whether it will investigate the claim. 

If the complaint is found to involve less serious criminal activity, noncriminal activity, or activities 

183 See Services’ Responses to JPP Requests for Information 74, 75 (May 6, 2015).

184 See Services’ Responses to JPP Request for Information 75 (May 6, 2015).

185 See Services’ Responses to JPP Requests for Information 71, 74, 75 (May 6, 2015).

186 DoD policy requires the primary MCIO investigator assigned to conduct an investigation of adult sexual assault to be 

properly trained in conducting such investigations; the policy lists the training criteria for those investigators. See U.S. 

Dep’t of Def., Instr. 5505.18, Investigation of Adult Sexual Assault in the Department of Defense encl. 2, ¶ 6 (June 18, 

2015) [hereinafter DoDI 5505.18], available at http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf. DoD policy 

also requires that all unrestricted reports of sexual assault (and attempts) against adults immediately be reported to the 

MCIO, regardless of the severity of the allegation, and that the MCIOs investigate the cases within their jurisdiction. Id. at 

¶ 3c. 

187 Id. at encl. 2, ¶ 2; see also U.S. Dep’t of Def., Form 2701, Initial Information for Victims and Witnesses of Crime (Aug. 

2013), available at http://www.dtic.mil/whs/directives/forms/eforms/dd2701.pdf. 

188 See DoDI 5505.18, ¶ 3(d)(1); see also Services’ Responses to JPP Requests for Information 71, 74, 75 (May 6, 2015). 

189 DoDI 5505.18, ¶ 3(d)(1); see also Services’ Responses to JPP Requests for Information 75(b), 77 (May 6, 2015). DoDI 

6495.02 also states that “[i]f the [retaliation] allegation is criminal in nature and the victim filed an Unrestricted Report 

[of sexual assault], the crime should be immediately reported to an MCIO, even if the crime is not something normally 

reported to an MCIO (e.g., victim’s personal vehicle was defaced).” See DoDI 6495.02 encl. 4, ¶ 7. Incidents of retaliation 

committed by someone other than the alleged offender may result in the initiation of a separate law enforcement report. 

See Army’s Response to JPP Request for Information 77 (May 6, 2015). 

VI. Investigating and Monitoring Retaliation
44

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

outside its authority, the MCIO may refer the matter to the IG, other law enforcement agencies, or the 

chain of command for further investigation and disposition.190

Upon receipt of a retaliation complaint, the MCIO agent must inform the victim’s command, SARC, 

and SVC of the complaint as well as of the results of all ensuing investigative efforts.191 The MCIO 

agent also must inform the victim when an investigation into the retaliation complaint is initiated 

and provide periodic status updates.192 Service members who have concerns about how the MCIO is 

handling their case may contact their command, SVC, supervisory personnel at the local MCIO office, 

the MCIO headquarters, an IG, or members of Congress to complain.193

The Navy noted that “[c]riminal retaliation, associated with a report of sexual assault, will often reveal 

information pertinent to the ongoing sexual assault investigation. Given the potential impact of such 

information on a sexual assault investigation, it should be gathered by the MCIO and documented in 

the criminal investigation.”194

B. INVESTIGATIONS BY DOD AND SERVICE INSPECTORS GENERAL

1. Procedures for IG Investigations

As noted above, the Military Whistleblower Protection Act of 1988, as amended by the FY14 NDAA, 

explicitly grants DoD IG and the Service IGs the authority to investigate unfavorable personnel 

actions taken against Service members as reprisal for communications regarding rape, sexual assault, 

sexual harassment, or other sexual misconduct.195 Military members can file a professional retaliation 

complaint with any Service196 or DoD IG office.197

When a Service IG receives any type of reprisal allegation, it is required to notify DoD IG within 10 

working days, even if the Service IG does not believe the complaint meets the elements of a reprisal 

case.198 DoD IG conducts an initial complaint analysis and determines whether there is a prima facie 

190 Air Force’s and Navy’s Responses to JPP Request for Information 75(b) (May 6, 2015). 

191 Navy’s Response to JPP Request for Information 77 (May 6, 2015). 

192 Navy’s and Marine Corps’ Responses to JPP Request for Information 77 (May 6, 2015).

193 Services’ Responses to JPP Request for Information 79(b) (May 6, 2015).

194 Navy’s Response to JPP Request for Information 92(c) (Dec. 3, 2015).

195 FY14 NDAA, supra note 3, at § 1715; 10 U.S.C. § 1034.

196 Service IGs are available at all levels of the chain of command, including the headquarters level. See DoD’s Response to 

JPP Request for Information 99 (Dec. 3, 2015). If an investigation is conducted by a Service IG, the Service IG must be 

outside the chain of command of both the alleged victim and the alleged retaliator, or at least one organization higher in 

the chain of command than the organization of both the alleged victim and the alleged retaliator. FY14 NDAA, supra note 

3, at § 1714(a); 10 U.S.C. § 1034; DoDD 7050.06 encl. 2, ¶ 1(c).

197 DoD’s Response to JPP Request for Information 99 (Dec. 3, 2015).

198 10 U.S.C § 1034; DoDD 7050.06 encl. 2, ¶ 3(c)(2); DoD IG’s Response to JPP Request for Information 98 (Dec. 3, 2015). 

Cf. U.S. Government Accountability Office, Whistleblower Protections: DOD Needs to Enhance Oversight of Military

Whistleblower Reprisal Investigations 27 (May 2015) [hereinafter 2015 GAO Report] (finding that not all complaints 

filed with the Services were reported to DoD IG); DOD IG’s Response to JPP Request for Information 100 (Dec. 3, 2015) 

(noting that in light of the GAO’s finding that not all complaints filed with the Services were reported to DOD IG, the 

original numbers of sexual assault related reprisal complaints provided to the JPP at the April 2015 JPP meeting were 

inaccurate); Marine Corps’ Response to JPP Request for Information 98 (Dec. 3, 2015) (indicating that the Marine Corps 
45

VI. INVESTIGATING AND MONITORING RETALIATION

case for a MWPA claim.199 For any type of reprisal allegation that meets the elements of a MWPA 

claim, DoD IG decides whether its Whistleblower Reprisal Investigation Section will conduct the 

investigation or the complaint will be returned to the Service IG for investigation.200 When DoD 

IG delegates a reprisal investigation to a Service IG, DoD IG maintains oversight and approval 

authority.201

Under the implementing directive for the MWPA, results of an IG investigation must be reported 

within 180 days after a complaint is received.202 For substantiated complaints, the investigating IG 

must make recommendations for an appropriate remedy. The investigating IG also must advise the 

(whistleblower) Service member that he or she may request a review by a BCMR.203

The Service Secretaries receive all completed IG investigation reports, including the recommendation 

for an appropriate remedy.204 If the Service Secretary finds sufficient basis to conclude that retaliation 

has occurred, he or she must order that the record of the Service member be corrected and must 

take any appropriate disciplinary or corrective action against the individual who committed the 

retaliation.205 If the Service Secretary determines that an order for remedial, disciplinary, or corrective 

action is not appropriate, then he or she must provide the Secretary of Defense and the Service member 

with a notice of the determination, give the reasons for not taking action, and, when appropriate, refer 

the report to the appropriate BCMR for further review.206

Service members can appeal the IG’s findings and request that a higher IG office review their 

complaint.207 However, if DoD IG conducts the investigation, the only recourse is to appeal to the 

Secretary of Defense.208

Inspector General reports all “prima facie cases of Military Whistleblower Reprisal (MWR) to DoD IG,” implying that 

some of the complaints may not be forwarded if they do not meet the initial complaint requirements).

199 DoD IG’s Response to JPP Request for Information 99 (Dec. 3, 2015). Ms. Nilgun Tolek, the Director of DoD IG 

Whistleblower Reprisal Investigations, informed the JPP: “We determine if there’s a prima facie allegation, which is to 

say there was a protected communication preceding some sort of threatened, withheld or taken personnel action and 

then if there is a plausible inference of knowledge and causation there we call that good to go for an investigation.” See 

Transcript of JPP Public Meeting 309 (Apr. 10, 2015). If DoD IG determines that the allegation is for social retaliation, it 

refers the report back to the hotline coordinator or Service IG for investigation, but provides oversight of any investigative 

activity. See Transcript of JPP Public Meeting 306–07 (Apr. 10, 2015) (testimony of Mr. Patrick Gookin, Director, DoD IG 

Hotline). 

200 DoD IG’s Response to JPP Request for Information 99 (Dec. 3, 2015).

201 DoDD 7050.06 encl. 2, ¶ 1(d).

202 Id. at encl. 2, ¶ 1(e). If a Service IG cannot issue a report of the investigation within 180 days, the Service IG must notify 

DoD IG, the Under Secretary of Defense for Personnel and Readiness, the Secretary of the Military Department concerned, 

and the Service member of the reasons for the delay and an estimate of when the report will be issued. See id. at encl. 2 

¶ 3(f).

203 Id. at encl. 2, ¶¶ 1(e)(2), 1(i), 3(e)(2), 3(i).

204 Id. at encl. 2, ¶¶ 1(h), 3(h).

205 Id. at encl. 2, ¶ 4(b)-(c). 

206 Id. at encl. 2, ¶ 4(d). 

207 Army’s and Air Force’s Responses to JPP Request for Information 79(c) (May 6, 2015).

208 10 U.S.C. § 1034(h).
46

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

2. Shortcomings of IG Investigations

In 2012 and 2015, the Government Accountability Office (GAO) conducted reviews of DoD IG’s 

management of whistleblower complaints. The 2012 review revealed that DoD IG was not meeting 

the 180-day requirement to complete military whistleblower reprisal investigations.209 In its follow-up 

review, the GAO found that the average length of a DoD IG and Service IG investigation during fiscal 

years 2013 and 2014 was 526 days—almost three times the limit prescribed in DoD and Service 

regulations.210 When the JPP asked DoD IG and the Services why cases were not processed within 

the required time, the reasons they gave included resourcing constraints, factual complexity of cases, 

inexperience of the teams conducting the investigations, and significant delays in the DoD IG oversight 

process.211

The 2015 GAO report also noted that DoD IG had inadequate oversight over the Service IGs, which 

did not always notify DoD IG of reprisal allegations.212 From the written responses to the JPP requests 

for information, it appears that the Service IGs conducting an initial complaint analysis have not 

always informed DoD IG of reprisal allegations if those complaints did not meet the prima facie 

elements for a reprisal case.213 Instead, believing that the complaints were not reprisal cases within the 

IG’s jurisdiction, the Service IGs may have referred social retaliation complaints to the command or 

reports of criminal retaliation to the MCIOs.214

In addition, the 2015 GAO report concluded that DoD IG has not formalized its processes to review 

Service IG reprisal investigations and to help ensure the quality and independence of investigations.215

Many Service IG case files reviewed by the GAO were missing required documentation, such as 

evidence of Service member interviews.216

Furthermore, it is unclear whether DoD IG intends to investigate all reprisal complaints related to 

sexual assault offenses or just continue to provide the requisite oversight. Ms. Nilgun Tolek, Director 

of DoD IG Whistleblower Investigations, testified that DoD IG will usually investigate sexual assault–

related reprisal complaints.217 In a written response, DoD IG reiterated that it already “handle[s]” all 

sexual assault–related reprisal allegations “about which it is made aware.”218 However, there is no 

written policy establishing whether DoD IG retains investigative authority over sexual assault reprisal 

cases.

The JPP requested data from DoD IG and the Service IGs on the total number of reprisal complaints 

received by each IG, including (1) sexual assault complaints; (2) sexual harassment complaints; 

209 U.S. Government Accountability Office, Whistleblower Protection: Actions Needed to Improve DOD’s Military

Whistleblower Reprisal Protection 13 (Feb. 2012). 

210 2015 GAO Report, supra note 198, at 15.

211 Services’ Responses to JPP Request for Information 101(c) (Dec. 3, 2015).

212 2015 GAO Report, supra note 198, at 27. 

213 See Marine Corps IG’s Response to JPP Request for Information 98(a) (Dec. 3, 2015). 

214 See Navy’s Response to JPP Request for Information 98 (Dec. 3, 2015).

215 2015 GAO Report, supra note 198, at 31. 

216 Id. at 41. 

217 Transcript of JPP Public Meeting 311 (Apr. 10, 2015) (testimony of Ms. Nilgun Tolek, Director, DoD IG Whistleblower 

Investigations).

218 DoD IG’s Response to JPP Request for Information 102(a) (Dec. 3, 2015).
47

VI. INVESTIGATING AND MONITORING RETALIATION

(3) fraud, waste, and abuse complaints; and (4) other complaints.219 The data the JPP received, 

summarized in the table below, indicate that both DoD IG and the Service IGs investigated sexual 

assault reprisal allegations in FY12, FY13, and FY14.220 Thus, while DoD IG may be providing 

oversight, it has not been retaining complete investigative authority over all sexual assault reprisal 

allegations. 

Chart: Number of Sexual Assault Reprisal Complaints Filed with DoD and Service IGs 

Compared to the Total Number of Reprisal Complaints221

FY DoD IG Army IG Air Force IG Navy IG Marine 

Corps IG

2012 4 / 661 Unknown / 

887 0 / 4 2 / 68 0 / 5

2013 6 / 565 1 / 704 2 / 7 1 / 39 0 / 7

2014 8 / 760 6 / 832 4 / 11 1 / 33 1 / 17

Total Reprisal 

Cases 18 / 1986 7 / 2423 6 / 22 4 / 140 1 / 29

note: The first number indicates the number of sexual assault reprisal complaints; the second number indicates the total 

number of military reprisal complaints received in the fiscal year. 

In December 2015, the JPP asked the IGs to also provide the disposition of the sexual assault reprisal 

allegations they received.222 That information is summarized in the table below. As the table shows, 

only one of the sexual assault reprisal complaints received by an IG was substantiated from FY12 

through FY14.223

219 JPP Request for Information 84 (May 6, 2015). The Coast Guard does not have an internal IG. The Coast Guard provided 

the following information: “The Coast Guard is unable to provide the requested data within the time period specified. 

Retaliation complaints may have been reported to [Department of Homeland Security] IG. [Coast Guard Investigative 

Service (CGIS)] may also receive complaints for retaliation. While CGIS recently acquired an electronic, online case 

database, Field Activity Tracking System (FACTS), IG cases are compiled together, and not by specific categories of IG 

complaints. CGIS is unaware of any specific complaint of sexual assault retaliation.” See Coast Guard’s Response to JPP 

Request for Information 100 (Dec. 3, 2015).

220 See Services’ Responses to JPP Request for Information 84 (May 6, 2015); Services’ Responses to JPP Requests for 

Information 100, 101, and 102(b) (Dec. 3, 2015).

221 The Army IG does not track sexual assault reprisals separately from other whistleblower complaints; it performed a 

manual search from FY13 to FY15. Therefore, FY12 data are unknown. In FY15, the Army IG received 9 sexual assault 

reprisal complaints; as of December 2015, 6 of the investigations were ongoing and 3 had been closed administratively. 

See Army’s Response to JPP Requests for Information 100, 101(a)-(b) (Dec. 3, 2015). The Army IG indicated that it has 

updated its database “to allow future tracking or reprisal complaints related to sexual assault.” See Army’s Response to 

JPP Request for Information 100 (Dec. 3, 2015).

222 JPP Request for Information 101(b) (Dec. 3, 2015); see also JPP Request for Information 84 (May 6, 2015).

223 See Services’ Responses to JPP Request for Information 101(b) (Dec. 3, 2015) (providing a complete synopsis of each 

retaliation complaint). Some of the Services also provided processing times in their responses. See Services’ Responses to 

JPP Request for Information 101(b) (Dec. 3, 2015). 
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Chart: Disposition of IG Sexual Assault Reprisal Cases for FY 2012–FY 2014224

Disposition for FY12–FY14 DoD IG Army IG Air Force IG Navy IG Marine Corps 

IG

Total complaints 18 7 6 4 1

Dismissed, Declined, 

Administrative closure, or 

No further investigation 

warranted

12 3 4 2 0

Still pending investigation 3 2 1 0 0

Not substantiated 3 2 1 1 1

Substantiated 0 0 0 1 0

note: The data provided for DoD IG reflect the number of complaints filed directly with DoD IG. Although the Service 

IGs may have referred cases to DoD IG for investigation, those cases are not reflected in the data provided for DoD IG. 

In FY15, DoD IG substantiated one reprisal case related to sexual misconduct.225 This case involved an 

Air Force master sergeant working on a joint staff who reported that an Army lieutenant colonel made 

inappropriate sexual contact with a contract employee. The Army lieutenant colonel and a colonel 

gave the master sergeant a negative performance evaluation, which made him ineligible for promotion. 

DoD IG recommended that the Secretary of the Army take corrective action against both the lieutenant 

colonel and colonel, and that the Secretary of Air Force take appropriate action to remedy the master 

sergeant’s records to allow him to compete for promotion.226

3. Ways to Improve the IG Processing of Sexual Assault Reprisal Claims

As demonstrated above, DoD IG and the Service IGs have investigated very few cases of retaliation 

against sexual assault victims. Because they receive so few of these cases, IG investigators often lack the 

training and experience of the MCIO agents who investigate sexual assault–related cases. 

224 The determination of substantiated or not substantiated is based on whether the allegations were supported by a 

preponderance of the evidence. See Department of Defense Inspector General, Guide to Investigating Military

Whistleblower Reprisal and Restriction Complaints 4-3 (June 29, 2015) [hereinafter DoD IG Guide], available at

http://www.dodig.mil/programs/whistleblower/pdfs/ioguide/GuideToInvestigatingMilitaryWhistleblowerReprisalAnd

RestrictionComplaints.pdf. Dismissed means that the IG closed a case during the initial complaint analysis, for failure 

to make a prima facie allegation or for other threshold reasons such as timeliness. Id. at 2-3, 2-6. Declined is a term 

typically used when a complaint does not fall within the IG’s jurisdiction because it constitutes a crime, is duplicative of 

allegations that were already investigated by a Service IG, or does not allege an unfavorable personnel action under DoDD 

7050.06. Administrative closure is a term used by the Army when Army IG refers a case to DoD IG for investigation and 

DoD IG determines that the case is not substantiated. No further investigation warranted is a term used in a variety of 

circumstances, including when the complainant no longer participates in the investigation and the evidence of the case 

indicates that the likely result would be a determination of not substantiated. See Services’ Responses to JPP Request for 

Information 101(b) (Dec. 3, 2015).

225 See U.S. Dep’t of Def., Office of the Inspector General, “DoD IG Monthly Update – October 2015,” available at http://

www.dodig.mil/eletter/eletter_view.cfm?id=6629.

226 Id.
49

VI. INVESTIGATING AND MONITORING RETALIATION

The JPP asked the Services whether DoD IG should retain jurisdiction over all sexual assault–related 

reprisal complaints to improve the quality of investigations, and the Services provided conflicting 

answers.227 In support of the proposal, the Army IG noted that “[d]irecting DoD IG to investigate 

all sexual assault victim reprisal complaints would lessen the burden on the Service IG offices.”228

However, the Headquarters of the Department of the Army and the Army Office of the Judge Advocate 

General cautioned against implementing a requirement that DoD IG investigate all sexual assault 

reprisal claims, arguing that some cases may be better addressed by the MCIOs.229 The Marine Corps 

stated that reserving investigative authority to DoD IG would not likely streamline the process “due to 

the amount of Service IG support DoD IG would require to complete the investigative process.”230 The 

Navy and Air Force did not think giving DoD IG all investigative authority would have much impact, 

because of the “small number of reprisal cases emanating from . . . sexual assault” cases.231

The JPP also asked DoD IG and the Service IGs if it would be beneficial to have a specialized 

investigative or processing section within DoD IG to specifically handle sexual assault retaliation 

complaints. 

DoD IG responded, “At this time the number of sexual assault reprisal complaints is too low to justify 

the creation of a specialized section. Should that change in the future, we are open to reevaluating.”232

DoD IG also contended that no special training was required to investigate sexual assault reprisal 

cases, noting, “All of our investigators are trained to handle sensitive matters.”233 In her testimony 

to the JPP in April 2015, Ms. Tolek stated that “there is no difference” between handling a sexual 

assault–related complaint and other reprisal complaints.234 She considered reporting a sexual assault or 

other sexual misconduct “one of many . . . types of protected communications under th[e] [s]tatute.”235

Similarly, the Air Force IG responded: 

There are no significant differences in the handling of a reprisal complaint based on the 

nature of the protected communication, in this case the report of a sexual assault. As 

long as the Investigating Officer can confirm that there was a Protected Communication 

made, then a reprisal investigation can be conducted. This should not require any 

specialized skillset.236

227 See Services’ Responses to JPP Request for Information 102 (Dec. 3, 2015).

228 Army’s Response to JPP Request for Information 102(a) (Dec. 3, 2015).

229 Headquarters of the Department of the Army / Army Office of the Judge Advocate General’s Response to JPP Request for 

Information 102(a) (Dec. 3, 2015).

230 Marine Corps IG’s Response to JPP Request for Information 102(a) (Dec. 3, 2015).

231 Air Force’s Response to JPP Request for Information 102(a) (Dec. 3, 2015); see also Navy’s Response to JPP Request for 

Information 102(a) (Dec. 3, 2015).

232 DoD IG’s Response to JPP Request for Information 102(c) (Dec. 3, 2015).

233 Id. 

234 Transcript of JPP Public Meeting 310 (Apr. 10, 2015) (testimony of Ms. Nilgun Tolek, Director, DoD IG Whistleblower 

Investigations).

235 Transcript of JPP Public Meeting 310 (Apr. 10, 2015) (testimony of Ms. Nilgun Tolek, Director, DoD IG Whistleblower 

Investigations) (stating that in the past few years, DoD IG has begun to conduct the investigations for all sexual assault 

reprisal complaints).

236 Air Force IG’s Response to JPP Request for Information 102(c) (Dec. 3, 2015). 
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

However, some SVCs told the JPP that that they did not view the IG process, as currently set up, as 

effective for handling cases of professional retaliation against sexual assault victims.237 Moreover, 

some victims told the JPP that they perceived the Service IGs as closely intertwined with the command 

structure rather than as independent entities.238 One victim of retaliation testified that though she went 

to an IG three times, an investigation was initiated only after her senator also made an inquiry.239

Another Air Force victim testified that the complaint of retaliation he made to his major command IG 

was provided to the individual he accused before it was submitted to the commander, and as a result 

the retaliation became worse.240

The JPP recognizes that it is important to maintain multiple avenues for reporting and investigating 

different types of retaliation allegations, and agrees that these should include an independent entity 

outside of the command structure. However, the current DoD and Service IG systems are limited by 

numerous problems, including extensive delays, inadequate oversight, and the IGs’ lack of familiarity 

with cases specifically involving retaliation related to sexual assault. 

Although the MWPA, as amended by the FY14 NDAA, outlines an important role for IGs in 

investigating sexual assault reprisal complaints, the Secretary of Defense must dedicate the resources, 

personnel, and training necessary to improve the deficiencies detailed in the GAO reports. The 

information received by the JPP indicates a lack of communication between DoD IG and the Service 

IGs regarding reporting requirements and investigative authority. Therefore, the JPP recommends 

that the Secretary of Defense establish a clear withholding policy requiring DoD IG to retain all 

investigative authority over sexual assault–related reprisal allegations. This would improve insight into 

and control over sexual assault reprisal complaints.

The JPP strongly disagrees with the view expressed by some presenters that handling sexual assault 

reprisal investigations is the same as handling other types of reprisal investigations. To date, the IG 

system has primarily addressed issues such as fraud, waste, abuse, and corruption. MCIO investigators 

and military prosecutors receive specialized training in trauma and counterintuitive behaviors in order 

to effectively interview victims and handle sexual assault cases. IG personnel who are responsible for 

investigating sexual assault reprisal complaints should receive similar training. Therefore, the JPP 

recommends that DoD IG designate investigators and supervisors within the Whistleblower Reprisal 

Investigation Section with specialized training in sexual assault trauma to handle sexual assault reprisal 

cases.

Though sexual assault reprisal investigations currently represent a small portion of the IG’s workload, 

sexual assault reporting across the Services has increased significantly in recent years. This recent rise 

may presage a similar increase in the number of complaints about professional retaliation related to 

sexual assault. DoD must ensure that adequate resources and properly trained personnel are available 

to effectively and efficiently receive, process, and investigate these complaints.

237 See, e.g., Transcript of JPP Public Meeting 307 (June 18, 2015) (testimony of Captain Micah Smith, Special Victims’ 

Counsel, U.S. Air Force); id. at 309–10 (testimony of Lieutenant Commander James Toohey, Victims’ Legal Counsel, U.S. 

Navy). 

238 See Transcript of JPP Public Meeting 58 (May 19, 2015) (testimony of Ms. V.P.); id. at 59 (testimony of Ms. C.B.); see also 

id. at 63–65 (testimony of Ms. Sara Darehshori, Senior Counsel, Human Rights Watch, U.S. Program). 

239 Transcript of JPP Public Meeting 59 (May 19, 2015) (testimony of Ms. C.B.).

240 Transcript of JPP Public Meeting 59–60 (May 19, 2015) (testimony of Master Sergeant T.S.).
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VI. INVESTIGATING AND MONITORING RETALIATION

C. COMMAND INVESTIGATIONS

Allegations of social retaliation are generally investigated by the command. If an IG or MCIO receives 

a complaint of social retaliation, it will typically refer the complaint to the command for investigation 

and resolution.241

Any commander who receives a report of social retaliation can initiate an informal commander’s 

inquiry or a more formal command investigation.242 A commander can also forward the complaint to 

the next level in the chain of command if doing so is necessary to avoid the appearance of a lack of 

impartiality or objectivity.243 If the command discovers that the allegations are criminal in nature, the 

commander can refer the matter to the MCIO; if the complaint involves professional retaliation, the 

commander can request that the IG conduct the investigation instead.244

The Air Force explained that in addition to ordering a command investigation, 

a commander or supervisor must take appropriate action if it is reasonable to believe 

retaliation has occurred. At a minimum, the member suspected of engaging in retaliation 

will be ordered to cease from engaging in any further retaliation. . . . [T]he alleged 

victim . . . will be informed that the command is aware of the suspected act or acts of 

retaliation, and that the alleged offenders have been ordered to cease from engaging in 

any further retaliation. The individual retaliated against will be advised to report any 

further acts of retaliation.245

Each of the Services has instructions dictating specific procedures and standards for formal command 

investigations.246 After being notified that a victim has made a complaint of retaliation, the commander 

may appoint an investigating officer to interview witnesses, seek other evidence, and draw conclusions 

and make recommendations concerning the allegations.247 The investigating officer can receive advice 

from legal counsel assigned to assist in following the proper procedures, such as reading witnesses their 

rights, and in understanding the elements of UCMJ violations.248

241 See Services’ Responses to JPP Requests for Information 71, 74, 75 (May 6, 2015).

242 See Services’ Responses to JPP Request for Information 75(a) (May 6, 2015); see also MCM, supra note 10, Rule for 

Courts-Martial 303 (Preliminary inquiry into reported offenses).

243 Navy’s Response to JPP Request for Information 74 (May 6, 2015); SECNAV Instr. 5370.7D, supra note 5, at encl. 3, ¶ 6.

244 See Services’ Responses to JPP Requests for Information 74, 75 (May 6, 2015). 

245 Air Force Response to JPP Request for Information 69 (May 6, 2015); AF Guidance Memo to AFI 36-2909, supra note 5, 

at ¶ 14.

246 See U.S. Dep’t of the Army, Army Reg. 15-6, Procedures for Investigating Officers and Boards of Officers

(Oct. 2, 2006) [hereinafter AR 15-6], available at http://armypubs.army.mil/epubs/pdf/r15_6.pdf; U.S. Coast

Guard, COMDTINST M5830.1A, Administrative Investigations Manual (Sept. 2007) [hereinafter COMDTINST

M5830.1A], available at http://www.uscga-district-7.org/PDF/legal/Administrative%20Investigations%20Manual%20

COMDTINST%205830.1A.pdf; Dep’t of the Air Force, Commander-Directed Investigation (CDI) Guide (Apr. 26, 

2010)[hereinafter AF CDI Guide], available at http://www.af.mil/Portals/1/documents/ig/cdi-guide.pdf; Dep’t of the Navy, 

JAGINST 5800.7F, Manual of the Judge Advocate General (June 26, 2012) [hereinafter JAGMAN], available at 

http://www.jag.navy.mil/library/instructions/JAGMAN2012.pdf.

247 Army’s Response to JPP Request for Information 75(a) (May 6, 2015); Marine Corps’ Response to JPP Request for 

Information 74 (May 6, 2015).

248 See Marine Corps’ Response to JPP Request for Information 74 (May 6, 2015); see also AR 15-6, supra note 246, at ¶ 3.1; 

COMDTINST M5830.1A, supra note 246, at ¶ 3.A.1; AF CDI Guide, supra note 246, at ¶ 5.4; JAGMAN, supra note 

246, at ¶ 0203.a.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

The Services’ instructions all establish that for command investigations, the burden of proof is a 

preponderance of the evidence standard.249 In other words, the investigating officer’s conclusions 

concerning the allegations must be supported by “a greater weight of evidence than supports a 

contrary conclusion.”250 The commander can adopt or reject the investigating officer’s findings and 

recommendations in whole or in part.251 The commander then determines the appropriate disposition 

of the allegations and briefs the individual who filed the complaint on that outcome.252

Service members who wish to challenge the findings and conclusions of a command investigation 

may request advice from their SVCs on which appeals process is appropriate to their particular 

concerns.253 In addition, the Service member always has the option to raise his or her concerns about 

the investigation and its conclusion to a commander at a higher level in the chain of command.254

The JPP recognizes that military commanders and leaders are often best positioned to respond 

to certain types of retaliation complaints, particularly those involving issues of social retaliation. 

Many victims told the JPP that their primary desire was for the retaliatory action to be stopped, and 

command investigation and response can effectively and efficiently resolve issues of noncriminal or 

social retaliation. However, commanders and leaders must understand the challenges and sensitivities 

associated with investigating such allegations. Accordingly, the JPP recommends that the Services 

ensure that personnel assigned by commanders to investigate retaliation complaints are properly 

trained on sexual assault trauma and issues regarding retaliation relating to sexual assault.

D. INSTALLATION CASE MANAGEMENT GROUPS’ MONITORING OF 

RETALIATION RELATED TO SEXUAL ASSAULT REPORTS 

Given the overlapping roles of those involved in receiving and investigating retaliation reports, DoD 

requires that the Services’ CMGs—which already monitor the status of sexual assault cases at monthly 

meetings—oversee retaliation complaints, facilitate updates on these cases, and coordinate responses 

to victims.255 The CMGs are chaired by the installation commander or deputy installation commander 

249 Services’ Responses to JPP Request for Information 76 (May 6, 2015); COMDTINST M5830.1A, supra note 246, at 

¶ 4.E.8.

250 Army’s Response to JPP Request for Information 76 (May 6, 2015).

251 See AR 15-6, supra note 246, at ¶ 2.3; COMDTINST M5830.1A, supra note 246, at ¶ 1.D.10.c; AF CDI Guide, supra

note 246, at ¶ 6.1.5; JAGMAN, supra note 246, at ¶ 0209.f.

252 See AR 15-6, supra note 246, at ¶ 2.3; COMDTINST M5830.1A, supra note 246, at ¶ 7.I.1.b; AF CDI Guide, supra note 

246, at ¶¶ 6.1.10, 7.1; JAGMAN, supra note 246, at ¶ 0209.

253 Navy’s and Marine Corps’ Responses to JPP Request for Information 79(a) (May 6, 2015).

254 Coast Guard’s Response to JPP Request for Information 79(a) (May 6, 2015).

255 See DoDI 6495.02 encl. 9, ¶ 2(i). The Coast Guard does not fall within the DoD requirement and uses SAPR Crisis 

Intervention Teams (CITs) instead of CMGs. The Coast Guard SAPR CITs are similar to civilian Sexual Assault Response 

Teams (SARTs) which involve the responders involved in sexual assault cases but do not have the high level command 

oversight of the CMGs or the requirement to review retaliation. According to the Coast Guard, “These SAPR CITs stand 

up within 24 hours for every unrestricted report of sexual assault and provide primary coordination for sexual assault 

incident response by promoting safety and communication across stakeholders. Each CIT consists of the responding 

SARC, the assigned Coast Guard Investigative Service (CGIS) agent, a judge advocate from the servicing legal office, a 

uniformed physician, as well as senior representatives from the victim and alleged offender’s command(s). Anyone of these 

representatives who becomes aware of a retaliation complaint could make it known to the rest of the team in furtherance 

of the goals of the CIT.” See Coast Guard’s Response to JPP Request for Information 95(a) (Dec. 3, 2015); see also U.S. 

Coast Guard, ALCOAST 320/14, SAPR Crisis Intervention Teams (SAPR CIT) (July 2014), available at https://www.uscg.

mil/announcements/ALCOAST/320-14_ALCOAST.txt.
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VI. INVESTIGATING AND MONITORING RETALIATION

and co-chaired by the installation SARC.256 The other members are those involved in and working 

on specific sexual assault cases, including SARCs; VAs; SVCs; MCIO and DoD law enforcement 

representatives; victims’ health care, mental health, and counseling services providers; chaplains; the 

command legal representatives or staff judge advocates; and victims’ commanders.257

In December 2014, the Secretary of Defense announced that the CMG chairs have the additional 

responsibility to “regularly assess, and refer for appropriate corrective action, all reports from a victim, 

witness, or first responder of retaliation, ostracism, maltreatment, or reprisal in conjunction with 

a report of sexual assault.”258 An update to DoD Instruction 6495.02 in July 2015 established that 

the CMG chair must ask the CMG members at each monthly meeting if the victim, victim’s family 

members, witnesses, bystanders who intervened, SARCs, VAs, responders, or any other party to the 

incident have experienced any incidents of retaliation, reprisal, ostracism, or maltreatment.259 Anyone 

with a communication privilege with the victim, such as the SARC, SVC, VA, or chaplain, must have 

permission from the victim to disclose the victim’s retaliation concerns.260

Once a report of retaliation is raised at a CMG meeting, most of the Services require the retaliation 

victim’s commander to provide the CMG chair a plan to address the issue.261 Army policy requires 

the lieutenant colonel (O-5) or higher-level commander to forward to the chair of the sexual assault 

review board a written plan that immediately addresses the issue.262 In the Air Force, when a retaliation 

report is made to the commander, the victim’s commander must address the report in his or her plan.263

The Marine Corps indicated that the final recommendations by its retaliation working group will 

standardize a format for the commander’s plan.264

If a retaliation case is referred to the MCIO, the sexual assault case agent provides a monthly update 

on the retaliation investigation to the CMG.265 However, IG representatives do not attend the CMG 

meetings, and cases reported to or investigated by the IGs are not currently briefed at the monthly 

CMG meetings.266 The Army noted that Service regulations could be changed to require that an IG 

representative attend the meeting or provide the SARC with updates to the CMG.267 Some of the other 

256 DoDI 6495.02 encl. 9, ¶ 1(b)–(c).

257 Id. at encl. 9, ¶ 1(d).

258 U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response (Dec. 3, 

2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_SecDef_

Initiatives.pdf; see also Marine Corps’ Response to JPP Request for Information 71 (May 6, 2015). 

259 DoDI 6495.02 encl. 9, ¶ 2(i).

260 Services’ Responses to JPP Request for Information 95(b) (Dec. 3, 2015).

261 Services’ Responses to JPP Request for Information 71 (May 6, 2015); Services’ Responses to JPP Request for Information 

97 (Dec. 3, 2015).

262 Dep’t of the Army, Army Dir. 2015-16, Command Engagement to Prevent Retaliation ¶ 4 (Mar. 4, 2015), available at 

http://www.apd.army.mil/pdffiles/ad2015_16.pdf; see also Army’s Response to JPP Request for Information 97 (Dec. 3, 

2015) (providing sample Army reprisal plan).

263 Air Force’s Response to JPP Request for Information 71 (May 6, 2015). If the victim’s commander is a subject in the 

retaliation report, Air Force policy requires the CMG chair to address the issue. See AF Memo on Updated Procedures, 

supra note 125, at ¶ 4.4.2.2.

264 Marine Corps’ Response to JPP Request for Information 97 (Dec. 3, 2015).

265 Services’ Responses to JPP Request for Information 95(c) (Dec. 3, 2015).

266 Services’ Responses to JPP Request for Information 95(d) (Dec. 3, 2015).

267 Army’s Response to JPP Request for Information 95(d) (Dec. 3, 2015).
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Services observed that the independence and integrity of the IG system limit what information the IG 

may provide the CMG about investigations.268

DoD policy requires retaliation allegations to remain on the CMG’s agenda for status updates until 

the victim’s case is closed or the allegation has been appropriately addressed.269 However, there is no 

standardized procedure for the CMG chairs or the Services to track open retaliation cases, and formal 

tracking is not required.270 The Air Force and Marine Corps use the CMG meeting minutes to ensure 

that retaliation issues remain on the CMG’s agenda.271 The Army assigns the installation SARC the 

responsibility of maintaining the CMG documentation.272 The Navy did not specify how the CMG 

tracks retaliation cases, but noted that information is maintained by the SARC, VA, VLC, or the 

victim’s commanding officer.273

Presenters told the JPP that CMGs are generally an effective forum for understanding the problem of 

retaliation and successfully resolving retaliation allegations. In the view of the Deputy Director of AF 

SAPRO, the CMG ensures “review and accountability”—two key components to achieving success 

in addressing retaliation—and also can inform future data collection efforts.274 An Air Force NCO 

highlighted the benefits of moving from the previous “reactive” and “passive-aggressive” approach to 

addressing retaliation to the CMGs’ “proactive” approach: “The new [Air Force] guidance describes 

procedures put in place through the [CMGs] to not just document, but to actively seek out instances of 

retaliation before they happen. This proactive approach . . . will prevent many instances of retaliation 

and the snowball effect that’s created by the supervisors and commanders when the issue of retaliation 

happens.”275

But the Services also highlighted certain limitations to the CMGs that result from the various privileges 

of the personnel involved, including the SARC, VA, and SVC.276 The Navy pointed out that the 

CMG “is a victim-driven system in which the Chair of the CMG primarily receives retaliation related 

information based upon the request of the victim.”277 The Army explained, however, that victims 

who report retaliation generally “want something done about it, and will authorize their SVC/VA to 

discuss the issue with the [CMG].”278 SVCs and VAs can ask the client how much information they 

268 Air Force’s and Marine Corps’ Response to JPP Request for Information 95(d) (Dec. 3, 2015). 

269 DoDI 6495.02 encl. 9, ¶ 2(i).

270 Army’s and Navy’s Responses to JPP Request for Information 96 (Dec. 3, 2015).

271 Air Force’s and Marine Corps’ Responses to JPP Request for Information 96 (Dec. 3, 2015). These responses did not 

specify who prepares the minutes or meeting agendas.

272 Army’s Response to JPP Request for Information 96 (Dec. 3, 2015).

273 Navy’s Response to JPP Request for Information 96 (Dec. 3, 2015).

274 Transcript of JPP Public Meeting 265 (Apr. 10, 2015) (testimony of Mr. Jay Aanrud, Deputy Director, HQ, U.S. Air Force 

SAPR).

275 Transcript of JPP Public Meeting 301 (May 19, 2015) (testimony of Chief Master Sergeant Craig Neri, U.S. Air Force, 

Command Chief, 45th Space Wing).

276 See Navy’s, DoD SAPRO’s, and Army’s Responses to JPP Request for Information 95(b) (Dec. 3, 2015).

277 See Navy’s Response to JPP Request for Information 95(b) (Dec. 3, 2015); see also DoD SAPRO’s Response to JPP 

Request for Information 95(b) (Dec. 3, 2015) (stating that “[u]nfortunately, the full scope of retaliation in sexual assault 

cases may never be known by the Chair of the CMG, as Department policy allows for victim choice in how they engage 

the response system”).

278 Army’s Response to JPP Request for Information 95(b) (Dec. 3, 2015).
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VI. INVESTIGATING AND MONITORING RETALIATION

would like shared at the CMG and “may be able to speak in hypotheticals to avoid releasing any client 

confidences or privileged information.”279

The JPP strongly supports the DoD initiative that requires the CMGs to review claims of retaliation 

related to the sexual assault cases discussed at their monthly meetings. In light of the recommendations 

given earlier in this report to improve processes, the Panel has three observations regarding the CMGs. 

First, across the Services, the details of how retaliation reports are handled and managed are not 

clear. Second, the absence of IGs from the CMGs may create gaps in information about professional 

retaliation complaints that could hamper the CMGs’ review of retaliation in sexual assault cases. 

Third, the CMGs’ monitoring function is limited by the willingness of victims to report retaliation.

On its face, the role of the CMG in the process seems straightforward: a report of retaliation related to 

a sexual assault is received through one of the various reporting channels, the commander or MCIO 

initiates an investigation, the CMG monitors the investigation, and the commander, with the assistance 

of the staff judge advocate, determines the appropriate disposition of the retaliation case. But the 

details regarding the roles and requirements of the CMG participants remain unclear. Specifically, some 

of the Services could not articulate who has responsibility for maintaining the information collected 

about retaliation at the CMGs and ensuring that it appears on the meeting agenda each month. 

To improve the CMG’s ability to track retaliation complaints, DoD and the Services should require 

that SARCs have the primary responsibility to maintain information about retaliation allegations 

discussed at the CMG meetings and ensure that the minutes properly reflect the CMG’s review. The 

SARC should note the status of each retaliation case after the CMG meeting. If no progress has been 

made and the CMG Chair fails to ensure that appropriate action is taken, the SARC can raise concerns 

through the SARC reporting channels at the Service or DoD level. The SARC should also have the 

responsibility of ensuring that the retaliation case appears on the CMG agenda for the following 

month. 

In addition, to ensure that the CMGs can monitor cases of professional retaliation, a representative 

from DoD IG or the Service IG should attend the CMG or provide monthly investigation status 

updates to the installation-level SARC, who should be responsible for monitoring and tracking 

retaliation complaints. Currently, the CMGs address only social retaliation or criminal retribution. 

Regular participation by or status updates from the IG will improve the ability of the CMGs to 

monitor all forms of retaliation and will promote the timely investigation and resolution of retaliation 

reports.

Lastly, the JPP was encouraged by testimony from commanders and leaders indicating that the monthly 

CMGs provide a helpful forum for monitoring and responding to retaliation. However, some members 

of the CMGs are bound by client privilege, and information discussed at the CMGs may be limited by 

what a victim is willing to disclose. As more victims report sexual assault offenses, the JPP is hopeful 

that they will also perceive the CMGs as a helpful resource and permit discussion in the CMG of any 

retaliation they experience.

279 Id.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
57

Resolving Retaliation Complaints VII.

Resolving a complaint about retaliation requires commanders and their organizations to approach the 

problem from multiple directions. First, the command must work to end the retaliation and ensure that 

the victim’s concerns are adequately addressed. Second, the command must provide the victim with an 

avenue for redress if he or she was subject to an improper personnel action. Third, the command must 

hold accountable the individual or group who engaged in retaliatory actions or behavior. 

A. RESPONDING TO THE VICTIM

1. Expedited Transfers

Several victims told the JPP that their primary goal was simply to stop the retaliation they experienced 

after filing a report of sexual assault.280 Victims of sexual assault often request expedited transfers, 

which allow Service members to move to another unit or a different installation.281 Such transfers 

are sought not only to gain distance from the perpetrator but also to escape retaliation from peers or 

the command. According to DoD Instruction 6495.02 on Sexual Assault Prevention and Response 

Program Procedures, the expedited transfer policy is intended to “address situations where victims feel 

safe, but uncomfortable,” and “assist in the victim’s recovery by moving the victim to a new location, 

where no one knows of the sexual assault.”282

A SARC, VA, or commander must inform a Service member who files an unrestricted report of sexual 

assault of the option to request a temporary or permanent expedited transfer.283 If a commander 

receives a request for expedited transfer and determines, after being advised by the supporting judge 

advocate and reviewing any available evidence, that the Service member’s report of sexual assault 

is credible, the commander must approve the request.284 In most circumstances, the Service member 

is to be transferred within 30 days of the request’s approval.285 A Service member whose request is 

disapproved can ask for a general or flag officer in the chain of command to review the decision.286

280 See, e.g., Transcript of JPP Public Meeting 39 (May 19, 2015) (testimony of Master Sergeant T.S.); id. at 182 (testimony of 

Ms. A.N.); see also id. at 289–90 (testimony of Ms. Nancy Pike, SARC, U.S. Air Force).

281 Transcript of JPP Public Meeting 61 (Apr. 10, 2015) (testimony of Major General Jeffrey Snow, Director, DoD SAPRO); 

see also Transcript of JPP Public Meeting 196 (May 19, 2015) (testimony of Ms. A.H.); DoDI 6495.02, ¶ 4(o).

282 DoDI 6495.02 encl. 5, ¶ 6(a).

283 Id. at encl. 5, ¶ 6(b).

284 Id. at encl. 5, ¶ 6(b)(1). 

285 Id. at encl. 5, ¶ 6(b)(4).

286 Id. at encl. 5, ¶ 6(b)(1).

VII. Resolving Retaliation Complaints
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Presenters testified that expedited transfers have been employed across the Services and often have 

proven to be an effective tool for ending retaliation.287 When necessary, victims of retaliation obtained 

expedited transfers even after their underlying sexual assault cases were closed.288

However, some victims pointed to limitations in the expedited transfer process. Given the increase 

in the use of social media, a change in physical location may fail to provide victims a fresh start.289

Likewise, expedited transfers may not be effective in those branches that are very small or have a closeknit community.290 One victim explained that he could not use the expedited transfer process because 

his career field was too small and specialized; he also feared that a transfer would only exacerbate the 

retaliation he was experiencing.291 He was eventually able to enter a new career field within his Service, 

but the process took more than a year.292

Presenters further commented about the need to minimize unintended consequences that may result 

from an expedited transfer, such as disruption to the Service member’s job, family life, and social 

support structure.293 An Army master sergeant testified that “the key is making sure there is the 

handoff between the losing command’s unit victim advocate or command[er] to the next one.”294 A 

Navy command master chief told the JPP that he assigns a victim advocate during check-in to every 

Service member who transfers to ensure that he or she immediately has a support structure in place at 

the new command.295

The JPP recognizes the important role of the expedited transfer program in stopping retaliation. 

Therefore, the JPP recommends two modifications to increase the program’s reach. First, the program 

should be expanded to include job retraining for Service members who belong to small specialty 

branches and thus would not benefit from a transfer to a new command or installation. Second, 

the program should also be made available, on a case-by-case basis, to witnesses or bystanders who 

intervene after a sexual assault and subsequently experience retaliation. 

2. Improving Communication and Transparency

In addition to seeking an end to the retaliation they are experiencing, many victims indicated that 

they want to be kept informed about decisions that affect them, including the disciplinary actions 

taken against their retaliators.296 While the results of courts-martial and non-judicial punishments 

287 Transcript of JPP Public Meeting 288 (Apr. 10, 2015) (testimony of Mr. Jay Aanrud, Deputy Director, HQ, U.S. Air Force 

SAPR). 

288 Transcript of JPP Public Meeting 262, 266 (May 19, 2015) (testimony of Sergeant First Class Bridgett Joseph, SARC, U.S. 

Army and Ms. Nancy Pike, SARC, U.S. Air Force).

289 See Transcript of JPP Public Meeting 277 (June 18, 2015) (statement of JPP Member Victor Stone).

290 See Transcript of JPP Public Meeting 246–47 (June 28, 2015) (testimony of Captain Micah Smith, Special Victims’ 

Counsel, U.S. Air Force,).

291 Transcript of JPP Public Meeting 187–88 (May 19, 2015) (testimony of Staff Sergeant N.L.); see supra Section V.B.

292 Transcript of JPP Public Meeting 188–89 (May 19, 2015) (testimony of Staff Sergeant N.L.).

293 See, e.g., Transcript of JPP Public Meeting 333 (May 19, 2015) (testimony of Command Master Chief Kevin Goodrich, 

U.S. Navy); id. at 336 (testimony of Command Master Chief Jason D. Griffin, U.S. Coast Guard).

294 Transcript of JPP Public Meeting 337–38 (May 19, 2015) (testimony of Master Sergeant Michelle M. Johnson, U.S. 

Army).

295 Transcript of JPP Public Meeting 333 (May 19, 2015) (testimony of Command Master Chief Kevin Goodrich, U.S. Navy).

296 See, e.g., Transcript of JPP Public Meeting 45 (May 19, 2015) (testimony of Petty Officer Third Class D.M.); id. at 94–96 
59

VII. RESOLVING RETALIATION COMPLAINTS

are releasable to a victim, victims do not always receive complete information about administrative 

disciplinary actions.297

When the command takes an adverse administrative action against an accused, that information is filed 

in the accused’s personnel record. Commanders receive legal advice from their supporting staff judge 

advocate about what information is releasable to the victim under the Privacy Act.298 But Privacy Act 

guidance is often vague, and interpretations vary widely regarding what information can be released 

to victims. In many circumstances, acting out of an abundance of caution, commanders do not release 

information to the victim about the administrative action taken against the offender.299

One victim, a former Air Force enlisted member, testified that she never could learn what 

administrative action was taken against her retaliator, despite the efforts of her SVC.300 Her supervisors 

cited the Privacy Act when they declined to release the information.301 The victim emphasized that 

transparency must be improved, so that victims can know what happens to their perpetrators.302

Improving communication and transparency can improve a victim’s morale and increase trust in his 

or her leadership. A Navy SARC testified that command leadership should “thoroughly communicate 

with sexual assault victims” regarding what to expect after making a report, noting that “open 

communication could alleviate a lot of uncertainty and misunderstandings” associated with the 

command’s response to a report of sexual assault or retaliation.303

The JPP recommends that DoD establish clear guidelines to specify what information can be released 

to a victim of retaliation. At a minimum, the victim should be notified whether his or her complaint 

was substantiated, was unsubstantiated, or was dismissed because the investigating authority 

determined that the allegations did not rise to the level that warranted an investigation. DoD policy 

should also clarify what information regarding the disciplinary action taken against the alleged 

offender is permissible under the Privacy Act to release to the victim of retaliation. DoD should address 

the various factors that might influence the command’s decision to release disciplinary information, 

including the offender’s right to privacy and the victim’s right to information, as well the seriousness of 

the offense and the rank of the offender. The JPP believes that greater transparency about disciplinary 

actions would signal to members of the command that retaliation will not be tolerated and would 

increase confidence that action will be taken in response to retaliation allegations.

(testimony of Ms. C.B.); id. at 156–57 (testimony of Major K.V.); id. at 99 (testimony of Ms. V.P.).

297 Air Force’s Response to JPP Request for Information 78 (May 6, 2015).

298 Id.

299 See id.

300 Transcript of JPP Public Meeting 94–96 (May 19, 2015) (testimony of Ms. C.B.).

301 Transcript of JPP Public Meeting 94–96 (May 19, 2015) (testimony of Ms. C.B.).

302 Transcript of JPP Public Meeting 94–96 (May 19, 2015) (testimony of Ms. C.B.).

303 Transcript of JPP Public Meeting 257 (May 19, 2015) (testimony of Ms. Kim Agnew, SARC, U.S. Navy).
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

B. REMEDIES FOR VICTIMS

1. Flag Officer Reviews of Involuntary Separations

Seeking to reduce the potential for improper or retaliatory involuntary discharges,304 Congress 

directed the Secretary of Defense to develop a policy requiring a general or flag officer to review, upon 

request, the circumstances of any proposed involuntary separation of a Service member who made 

an unrestricted report of sexual assault within the preceding year.305 DoD incorporated this FY13 

NDAA provision into its instruction on sexual assault prevention and response procedures, but did not 

establish requirements to track compliance with the policy.306

Service members seeking a review of their involuntary separation must submit a written request, 

before the action is finalized, to the first general or flag officer in the separation authority’s chain of 

command.307 A Service member who submits a timely request will not be separated until the general or 

flag officer conducting the review concurs with the grounds for the involuntary separation. A Service 

member making a request after the final separation action is complete must apply to the appropriate 

Service discharge review board or BCMR for consideration.308

In April 2015, leadership from DoD SAPRO told the JPP they were not aware of any tracking or other 

mechanism to monitor compliance with the NDAA requirement that a general or flag officer review 

proposed involuntary separations of Service members who made unrestricted reports of sexual assault 

within the preceding year.309 The JPP recommends that DoD institute such mechanisms and track the 

following three elements: 

(1) the number of Service members who reported a sexual assault in the previous 12 months and 

were involuntarily separated; 

304 In response to the JPP’s May 2015 data call, the Services were unable to provide information about the total number of 

sexual assault victims who filed an unrestricted report and were subsequently involuntarily discharged in FY12–FY14. 

Most of the Services do not track these data. The Navy began tracking the involuntary separation of enlisted sexual assault 

victims in FY13; the Navy also began tracking the involuntary separation of officer sexual assault victims in FY14. See 

Services’ Responses to JPP Request for Information 83 (May 6, 2015).

305 National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239 [hereinafter FY13 NDAA], § 578, 126 

Stat. 1632 (2013). 

306 See DoDI 6495.02, ¶ 4(p); see also Transcript of JPP Public Meeting 76–77 (Apr. 10, 2015) (testimony of Dr. Nathan 

Galbreath, Senior Executive Advisor, DoD SAPRO). In a written submission to the JPP, Protect Our Defenders 

recommended that additional safeguards be put in place to ensure that sexual assault victims are not inappropriately 

subject to involuntary discharges. Specifically, POD expressed concern that when sexual assault victims are diagnosed 

with PTSD, they may be “wrongfully separated for another mental health condition (e.g. personality disorder, adjustment 

disorder) or minor misconduct stemming from PTSD.” POD suggested that when a victim has conflicting diagnoses and an 

involuntary administrative discharge is pending, “the victim should be allowed to go through a Medical Evaluation Board 

(MEB) to determine the nature of their medical conditions.” For military members facing both an administrative discharge 

and a medical discharge, POD recommended that the medical board review should have priority over the administrative 

discharge. See POD Comment, supra note 105.

307 DoDI 6495.02, ¶ 4(p).

308 Id.

309 Transcript of JPP Public Meeting 76–77 (Apr. 10, 2015) (testimony of Dr. Nathan Galbreath, Senior Executive Advisor, 

DoD SAPRO).
61

VII. RESOLVING RETALIATION COMPLAINTS

(2) the number of Service members who requested a review of the separation and, if such a request 

was made, whether a general or flag officer reviewed the circumstances of the involuntary 

separation; and

(3) the results of the general or flag officer reviews, including whether separations are found to 

have been made with a retaliatory intent. 

The JPP believes that such tracking will help ensure compliance with the NDAA requirement, which 

safeguards against the retaliatory involuntary separation of Service members.

2. Record Corrections for Service Members

Service members who believe that their personnel records contain “an error or injustice” may request 

relief from their Service’s BCMR, which is a board of equity.310 Victims of sexual assault may apply to 

BCMRs to request relief from personnel actions resulting from social or professional retaliation.311

In considering an application for relief, the BCMR reviews documents submitted by the Service 

member along with personnel files, medical records, and advisory opinions from medical experts, 

if applicable.312 It also reviews IG reports, when available.313 Although the BCMR is not ordinarily 

an investigative body, it may receive oral argument, examine and cross-examine witnesses, take 

depositions, and conduct evidentiary hearings when adjudicating reprisal cases.314 In addition, the 

BCMR may ask that the IG gather further evidence for its consideration.315

In Section 547 of the FY15 NDAA, Congress sought to enhance the process by which victims of sexual 

assault seek record corrections.316 Section 547 requires the Service Secretaries to establish a confidential 

process through the BCMRs for victims of sexual assault to challenge the terms or characterization of 

their discharge or separation from the Service on the grounds that the characterization was adversely 

affected by the Service member being a victim of a sexual assault.317 BCMRs must take into account 

the psychological and physical impact of the sexual assault, and must determine what bearing such an 

experience may have had on the circumstances surrounding the victim’s discharge or separation.318

In addition, under the FY16 NDAA, effective as of November 25, 2015, the Service Secretaries now 

have limited authority to initiate applications for correction of military records. Section 521 permits 

310 10 U.S.C. § 1552.

311 The MWPA does not provide for a civil remedy if a Service member receives an unfavorable personnel action as a reprisal 

for making a report of sexual assault or other protected communication. See 10 U.S.C. § 1034. 

312 Army’s and Air Force’s Responses to JPP Request for Information 80(a) (May 6, 2015).

313 Id. BCMRs prioritize cases that have been substantiated by the IG. See Army’s and Air Force’s Responses to JPP Request 

for Information 80(d) (May 6, 2015).

314 10 U.S.C. § 1034(g)(2); see also Air Force’s Response to JPP Request for Information 80(a) (May 6, 2015).

315 10 U.S.C. § 1034(g)(2). The Air Force BCMR noted that it has requested the IG to gather further evidence three times in 

the past four years. See Air Force’s Response to JPP Request for Information 80(a) (May 6, 2015).

316 National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 [hereinafter FY15 NDAA], § 547, 128 

Stat. 3292 (2014).

317 The Air Force noted that a confidential process previously existed for all applicants, so there have not been any significant 

changes as a result of the NDAA provision. See Air Force’s Response to JPP Request for Information 80(b) (May 6, 2015).

318 FY15 NDAA, supra note 316, at § 547; see also Services’ Responses to JPP Request for Information 80(b) (May 6, 2015).
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

the Service Secretaries to file a request for correction of a military record if the request is made on 

behalf of a group of Service members or former Service members who were similarly harmed by the 

same error or injustice.319 This may prove to be a useful provision for similarly situated victims of 

sexual assault seeking record corrections after experiencing retaliation.

Efforts are also under way to speed up the process for record corrections. Representatives from the 

BCMRs described an expedited system for processing MWPA complaints. These complaints can be 

processed in six months, rather than the usual ten months.320 The Army explained that its BCMR 

generally maintains a copy of the substantiated IG investigation report on hand, so that the documents 

will be immediately available if a Service member requests relief.321

Despite the improved procedures, BCMR representatives told the JPP that they had received very 

few applications for relief from victims of sexual assault.322 These victims rarely frame their requests 

for relief in terms of retaliation.323 Instead, the Air Force noted that of the victims of sexual assault 

who applied to the BCMRs for record corrections, most claimed to have been discharged because 

of their inability to cope with the rigors of the military as a result of the trauma suffered from the 

assault. Generally, these applicants requested that the BCMR consider a medical discharge or medical 

retirement in lieu of an administrative discharge.324 As in other cases involving requests for retirement 

or discharge for physical disability, the BCMR “must determine if the evidence provided by the 

applicant is sufficient to conclude that the applicant should have been found unfit for continued service 

at the date of their separation, and, thus, entitled to disability benefits.”325 

C. HOLDING OFFENDERS ACCOUNTABLE

1. Mechanisms to Punish Those Who Engage in Retaliation

Commanders have numerous tools to take action against members of their command who engage in 

retaliation. Administrative actions against the accused include corrective measures such as counseling, 

admonitions, reprimands, or withholding of privileges.326 For more serious violations, commanders 

may impose non-judicial punishment under Article 15 of the UCMJ. Such punishments include 

319 National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 [hereinafter FY16 NDAA], § 521 (2015). 

320 See Air Force’s Response to JPP Request for Information 80(a) (May 6, 2015); see also 10 U.S.C. § 1557.

321 See Army’s Response to JPP Request for Information 80(d) (May 6, 2015).

322 See generally Transcript of JPP Public Meeting 353–54 (Apr. 10, 2015) (testimony of Mr. John K. Vallario, Deputy 

Executive Director, Air Force BCMR; testimony of Mr. Douglas Huff, Legal Advisor, Army Review Boards Agency; 

testimony of Mr. Jon Ruskin, Board for Correction of Naval Records Counsel; and testimony of Ms. Julia Andrews, Chair, 

Coast Guard BCMR). 

323 As of May 2015, the Air Force reported that the Air Force BCMR had not received any applications from a Service 

member claiming that the personnel action received was a reprisal for reporting a sexual assault. See Air Force’s Response 

to JPP Request for Information 81(c) (May 6, 2015). Similarly, the Coast Guard reported that the Coast Guard BCMR 

had not received a sexual assault whistleblower case in several years. See Coast Guard’s Response to JPP Request for 

Information 81(a) (May 6, 2015).

324 Air Force’s Response to JPP Request for Information 80(c) (May 6, 2015).

325 Id.

326 See MCM, supra note 10, Rule for Courts-Martial 306(c)(2). 
63

VII. RESOLVING RETALIATION COMPLAINTS

reduction in pay grade, confinement, forfeiture of pay, restrictions to certain specified areas and limits, 

and suspension from duty.327 Commanders may also prefer charges for prosecution under the UCMJ. 

2. Lack of Data on Punishing Retaliation

The extent to which commanders employ their numerous tools to discipline Service members who 

engage in retaliation is unknown. Historically, the Services have not tracked information on the 

disposition of retaliation offenses, and none of the Services could tell the JPP the number of their 

members who received an adverse action relating to their retaliatory misconduct.328

Anecdotal evidence suggests that Service members accused of retaliation often go unpunished. Some 

victims told the JPP that their retaliators were not held accountable for their actions.329 A Human 

Rights Watch researcher added that “the lack of accountability for retaliation was definitely something 

that we heard time and time again from survivors, even if their cases were substantiated and [they] 

experienced severe retaliation[.]”330

3. Retaliation as an Article 92 Violation

The FY14 NDAA required the Secretary of Defense to prescribe regulations prohibiting retaliation 

against an alleged victim or other member of the Armed Forces who reports a criminal offense.331

As discussed previously, all the Services recently prescribed regulations that prohibit ostracism, 

maltreatment, and professional retaliation.332 If a Service member engages in conduct that violates one 

of these regulations, he or she may be prosecuted under Article 92 of the UCMJ for failure to obey an 

order or regulation.333

As the regulations are currently drafted, the Services include narrow intent requirements in their 

definitions of ostracism and maltreatment. Most of the Services define ostracism as “the exclusion, 

from social acceptance, privilege or friendship with the intent to discourage reporting of a criminal 

offense or otherwise discourage the due administration of justice.”334 Maltreatment as a form of 

retaliation is defined by most of the Services as 

treatment by peers or other persons that, when viewed objectively under all the 

circumstances, is abusive or otherwise unnecessary for any lawful purpose, that is done 

with the intent to discourage reporting of a criminal offense or otherwise discourage the 

327 See 10 U.S.C. § 815 (UCMJ art. 15).

328 Services’ Responses to JPP Request for Information 82 (May 6, 2015).

329 See, e.g., Transcript of JPP Public Meeting 229 (May 19, 2015) (testimony of Lance Corporeal J.J.).

330 See Transcript of JPP Public Meeting 18 (May 19, 2015) (testimony Ms. Sara Darehshori, Senior Counsel, Human Rights 

Watch, U.S. Program); see also HRW Embattled, supra note 37, at 100–05 (May 2015).

331 FY14 NDAA, supra note 3, at § 1709. 

332 See supra Section II.D and Appendix A.

333 See 10 U.S.C. § 892 (UCMJ art. 92). 

334 AF Guidance Memo to AFI 36-2909, supra note 5, at ¶ 11.2 (emphasis added); see also SECNAV Instr. 5370.7D, supra 

note 5, at encl. 1, ¶ 15(a)(2); ALCOAST 208/14, supra note 5, at ¶ 3(b). The Army’s definition of ostracism differs from 

the other Services’ definitions of ostracism. See Army Dir. 2014-20, supra note 5, at ¶ 4(a)(2).
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due administration of justice, and that results in physical or mental harm or suffering, or 

reasonably could have caused, physical or mental harm or suffering.335

A 2014 report prepared by DoD noted that the Services included the intent requirement in the 

definitions of ostracism so that the regulations can survive constitutional scrutiny (as not violating the 

First Amendment’s right to freedom of association).336 However, the report did not comment on the 

parallel intent requirement in the definitions of maltreatment, and no such element appears in Article 

93 of the UCMJ, which prohibits maltreatment of a person who was subject to the orders of the 

accused.337 Under the Service regulations, ostracism and maltreatment cover only a subset of retaliatory 

behaviors about which the JPP heard testimony338—for example, the regulations would not address 

retaliatory acts when there is not sufficient proof of the retaliator’s intent. 

The JPP recognizes the First Amendment concerns raised by punishing ostracism and agrees that the 

narrow intent element is necessary for the restriction on ostracism to survive constitutional scrutiny. 

However, the JPP believes that portions of the Service regulations on maltreatment, including the 

narrow intent element, are problematic. 

The Services’ current definitions of maltreatment include elements that are not required under 

other provisions prohibiting similar misconduct, such as Article 93, UCMJ—which criminalizes 

maltreatment of a person who is subject to the orders of the accused—and the Service regulations 

prohibiting hazing. Specifically, the maltreatment definitions include (1) a narrow intent element 

requiring that the act was committed “to discourage reporting of a criminal offense or otherwise 

discourage the due administration of justice,” (2) unspecific language requiring that the behavior was 

abusive “or otherwise unnecessary for any lawful purpose,” and (3) a requirement that the retaliatory 

act resulted “in physical or mental harm or suffering, or reasonably could have caused, physical or 

mental harm or suffering.”339

The JPP recommends that the Services revise their definitions of maltreatment. The following definition 

would address the JPP’s concerns:

Maltreatment, which is a form of retaliation, is treatment by peers or by other persons that, 

when viewed objectively under all the circumstances, is abusive, cruel, humiliating, oppressive, 

335 AF Guidance Memo to AFI 36-2909, supra note 5, at ¶ 11.3 (emphasis added); see also SECNAV Instr. 5370.7D, supra 

note 5, at encl. 1, ¶ 15(a)(3); ALCOAST 208/14, supra note 5, at ¶ 3(c). The Army’s definition of maltreatment differs 

from the other Services’ definitions of maltreatment. See Army Dir. 2014-20, supra note 5, at ¶ 4(a)(3).

336 U.S. Dep’t of Def., Report on Prohibiting Retaliation Against an Alleged Victim or Other Member of the Armed

Forces Who Reports a Criminal Offense [hereinafter DoD Report on Prohibiting Retaliation] at 8 (June 2014), 

available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/06-Retaliation/20150410/02_DoDReport_Response_

FY14Section1709_201406.pdf.

337 See id.; see also 10 U.S.C. § 893 (UCMJ art. 93). Article 93 states: “Any person subject to this chapter who is guilty of 

cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial 

may direct.” The elements under Article 93 are (1) that a certain person was subject to the orders of the accused and (2) 

that the accused was cruel toward, or oppressed, or maltreated that person. The explanation under Article 93 states, in 

part: “‘Any person subject to his orders’ means not only those persons under the direct or immediate command of the 

accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful 

orders of the accused, regardless whether the accused is in the direct chain of command over the person.”

338 See Transcript of JPP Public Meeting 93 (May 19, 2015) (testimony of Ms. Sara Darehshori, Senior Counsel, Human 

Rights Watch, U.S. Program).

339 AF Guidance Memo to AFI 36-2909, supra note 5, at ¶ 11.3; see also SECNAV Instr. 5370.7D, supra note 5, at encl. 1, 

¶ 15(a)(3); ALCOAST 208/14, supra note 5, at ¶ 3(c); see also Appendix A.
65

VII. RESOLVING RETALIATION COMPLAINTS

demeaning, or harmful to an individual and is done to discourage the individual from reporting 

a criminal offense or because the individual reported a criminal offense. Maltreatment under 

this instruction does not require that the individual was subject to the orders of the accused as 

is required for maltreatment under Article 93, UCMJ.

The JPP believes that the behaviors that should be prohibited as maltreatment should be similar to 

those prohibited under the Service regulations on hazing: behaviors that are cruel, abusive, humiliating, 

oppressive, demeaning, or harmful. The JPP also believes that the latter portion of the intent element 

in the existing regulations—the “intent to . . . discourage the due administration of justice”—can be 

broadened to state “because the Service member reported a criminal offense.” This proposed definition 

of maltreatment would appropriately cover a broader range of abusive, retaliatory acts that may occur 

both before and after a report of sexual assault is made. 

4. A Separate Punitive Article Prohibiting Retaliation

The 2012 version of the UCMJ does not include a distinct article that specifically prohibits retaliation 

against a Service member who reports a criminal offense. The FY14 NDAA required the Secretary of 

Defense to prepare a report on whether the UCMJ should be amended to add a new punitive article 

prohibiting retaliation.340 In its June 2014 report, DoD recommended against doing so.341 Noting the 

potential First Amendment problems with criminalizing retaliation—particularly ostracism—the report 

commented that should a court find the anti-retaliation language unconstitutional, an enforceable 

retaliation offense could be more quickly restored in regulations changed by the Services than in a 

statute amended by Congress.342

The report also explained that some forms of retaliation may be criminally punished under Article 93 

of the UCMJ, which prohibits cruelty to or maltreatment of a person who was subject to the orders 

of the accused; Article 133, which prohibits conduct unbecoming an officer and a gentleman; and 

Article 134, which prohibits conduct that is prejudicial to good order and discipline or of a nature to 

bring discredit to the Armed Forces.343 Retaliation that rises to the level of a separate criminal offense, 

such as stalking, threatening a victim, or assaulting a victim, may be prosecuted under the appropriate 

punitive article.344

On December 28, 2015, DoD published a report by the Military Justice Review Group (MJRG) 

recommending legislative changes to the UCMJ: among its proposals is to add professional retaliation 

as a new enumerated offense. The new article would punish as a court-martial may direct any Service 

member “who, with the intent to retaliate against any person for reporting or planning to report a 

criminal offense, or with the intent to discourage any person from reporting a criminal offense—(1) 

wrongfully takes or threatens to take an adverse personnel action against any person; or (2) wrongfully 

withholds or threatens to withhold a favorable personnel action with respect to any person.”345 The 

340 FY14 NDAA, supra note 3, at § 1709(c).

341 DoD Report on Prohibiting Retaliation, supra note 336, at 1, 7–8. 

342 Id. 

343 10 U.S.C. §§ 892, 893, 933, 934 (UCMJ art. 92, 93, 133, 134); see also DoD Report on Prohibiting Retaliation, supra

note 336, at 6–7.

344 See, e.g., 10 U.S.C. § 920a (UCMJ art. 120a) (Stalking); 10 U.S.C § 928 (UCMJ art. 128) (Assault); MCM, supra note 10, 

pt. IV, ¶ 110 (Threat, communicating). 

345 Military Justice Review Group, Report of the Military Justice Review Group, Part I: UCMJ Recommendations 981 (Dec. 

22, 2015), available at http://www.dod.gov/dodgc/mjrg.html. 
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MJRG believes that “[t]his new offense would provide added protection for witnesses, victims, and 

persons who report or plan to report a criminal offense to law enforcement or military authority.”346

According to the MJRG’s analysis, this proposed new offense would not preempt Service regulations 

that specify additional types of retaliatory conduct that may be punishable under Article 92 (Failure 

to obey order or regulation), nor would it preempt other forms of retaliatory conduct from being 

prosecuted under Articles 93 (Cruelty and maltreatment), 109 (Destruction of property), 128 (Assault), 

131b (Obstructing justice), 130 (Stalking), or 134 (General article).347

Due to the timing of the MJRG report, the JPP was unable to fully analyze the MJRG’s 

recommendation to add professional retaliation to the UCMJ as an enumerated offense.

The JPP believes that commanders currently have adequate tools at their disposal to punish members 

of their command who engage in social retaliation. Social retaliation can be punished as a violation 

of Article 92 of the UCMJ, as well as a violation of other enumerated articles that may address any 

underlying misconduct that is part of the retaliatory actions. Therefore, the JPP recommends that 

Congress not add a separate offense to the UCMJ to prohibit social retaliation. 

346 Id. 

347 Id.
67

Preventing Future Retaliation VIII.

In addition to seeking to effectively resolve retaliation complaints, the Services rely mainly on Servicewide and localized training to prevent retaliation. Many presenters to the JPP testified that training 

Service members at all levels of the command is the key to preventing retaliation.348

A. DOD AND THE SERVICES’ INITIATIVES FOCUSED ON TRAINING

Retaliation training is not uniform across the Services: each has developed different methods 

and designated different organizations as responsible.349 Nevertheless, presenters to the JPP were 

generally unified in emphasizing the importance of developing targeted training for direct or first-line 

supervisors. In December 2014, DoD directed the Chiefs of the Military Services to augment training 

for first-line supervisors on sexual assault prevention and response, including training on how to 

recognize the signs of retaliation.350

Together with periodic training on retaliation, many of the Services use less formal communications 

strategies to educate Service members about retaliation.351 These strategies range from small group 

discussions and face-to-face engagements about retaliation to broad social media outreach and media 

campaigns.352

1. U.S. Army

In the Army, the Sexual Harassment/Assault Response and Prevention (SHARP) Directorate, SHARP 

Academy, Training and Doctrine Command, Inspector General, and the Judge Advocate General’s 

Legal Center and School all share responsibility for training Service members about retaliation.353

All soldiers are required to receive annual SHARP operational training, which includes material on 

retaliation and takes place both online and in a classroom.354 SHARP certification courses are also used 

to train SARCs and VAs on how to report and respond to retaliation allegations.355

348 See, e.g., Transcript of JPP Public Meeting 379 (May 19, 2015) (testimony of Colonel Brian Foley, Garrison Commander, 

U.S. Army); id. at 328 (Command Master Chief Kevin Goodrich, U.S. Navy).

349 Services’ Responses to JPP Request for Information 67 (May 6, 2015).

350 U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response (Dec. 3, 

2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_DoD_Report_to_POTUS_SecDef_

Initiatives.pdf.

351 Transcript of JPP Public Meeting 247 (Apr. 10, 2015) (testimony of Colonel Scott S. Jensen, Branch Head, USMC, HQ, 

Marine Corps SAPR); id. at 256 (testimony of Rear Admiral Richard P. Snyder, U.S. Navy, Director, Twenty-First Century 

Sailor Office); see also Services’ Responses to JPP Request for Information 67 (May 6, 2015).

352 Transcript of JPP Public Meeting 247 (Apr. 10, 2015) (testimony of Colonel Scott S. Jensen, Branch Head, USMC, HQ, 

Marine Corps SAPR); id. at 256 (testimony of Rear Admiral Richard P. Snyder, U.S. Navy, Director, Twenty-First Century 

Sailor Office).

353 Army’s Response to JPP Request for Information 67 (May 6, 2015).

354 U.S. Dep’t of Army, Sexual Harassment/Assault Response & Prevention, “Prevention & Training,” available at http://

www.sexualassault.army.mil/Template-preventionAndTran.cfm?page=prevention_overview.cfm.

355 Army’s Response to JPP Request for Information 67 (May 6, 2015).

VIII. Preventing Future Retaliation
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

The Army has also launched the “Not in My Squad” campaign, an initiative specifically geared toward 

junior noncommissioned officers.356 This campaign was developed to address the critical role of firstline leaders in promoting “a climate of dignity and respect founded on good order and discipline.”357

In addition, the Army produces videos containing testimonials from sexual assault victims who 

had experienced social retaliation. These videos are used to facilitate small group discussions about 

retaliation and the harm it causes.358

2. U.S. Air Force

AF SAPRO is the lead organization within the Air Force in training leaders and Service members about 

retaliation against victims of sexual assault. AF SAPRO incorporates information about retaliation 

in the annual SAPR training provided to all airmen. Topics addressed by the training include how to 

provide support to victims of sexual assault and how to report retaliation allegations. Furthermore, AF 

SAPRO educates leaders on the neurobiology of trauma and trains commanders to proactively address 

retaliation.359 The Air Force has also developed training on retaliation for first-line supervisors and 

senior enlisted leaders.360

In addition to annual SAPR training, all airmen participate in SAPR small group discussions 

throughout the year, including a mandatory session that focuses on empathy and how to appropriately 

respond to a victim of sexual assault.361

3. U.S. Navy

The Navy has incorporated retaliation training into a holistic training program overseen by the 

Twenty-First Century Sailor Office.362 This office was established in 2013 to streamline initiatives 

aimed at maximizing sailor and Marine readiness and resiliency.363 Among its many responsibilities—

which include promoting awareness about drug and alcohol abuse, preventing hazing, and responding 

to sexual harassment—the Twenty-First Century Sailor Office ensures that appropriate training is 

provided to leaders and Service members about retaliation against victims of sexual assault.364 The 

Navy’s SAPR Office and Naval Justice School also provide training on retaliation.365

356 Transcript of JPP Public Meeting 240–41 (Apr. 10, 2015) (testimony of Ms. Monique Ferrell, U.S. Army, Director, 

SHARP).

357 Transcript of JPP Public Meeting 240 (Apr. 10, 2015) (testimony of Ms. Monique Ferrell, U.S. Army, Director, SHARP).

358 Army’s Response to JPP Request for Information 67 (May 6, 2015). 

359 Air Force’s Response to JPP Request for Information 67 (May 6, 2015).

360 Id.

361 Id.

362 Navy’s Response to JPP Request for Information 67 (May 6, 2015).

363 U.S. Dep’t of the Navy, SECNAV Instr. 5300.40, Department of the Navy 21st Century Sailor and Marine Initiative

(June 27, 2013), available at http://www.21stcentury.navy.mil/Documents/SECNAVINST%205300.40.pdf.

364 Navy’s Response to JPP Request for Information 67 (May 6, 2015).

365 Id.
69

VIII. PREVENTING FUTURE RETALIATION

In addition, the Navy is enhancing first-line supervisor training on how to recognize, respond to, 

and prevent retaliation.366 The Navy is developing new training courses on sexual assault response 

and prevention for senior enlisted leaders. These courses will include sections that discuss retaliation, 

reprisal, ostracism, and maltreatment and the appropriate response by peers to a victim and an alleged 

offender when a sexual assault is reported.367

Like the Army, the Navy also produces short videos on various topics relating to sexual assault 

response and prevention. Some of these videos address the need to prevent gossip and rumors and 

ensure that victims receive appropriate care. The videos include testimonials from victims of social 

retaliation.368

4. U.S. Marine Corps

In the Marine Corps, the Inspector General has the primary responsibility for reprisal training, and 

the Marine Corps SAPR Program provides additional training on retaliation. Marines are required 

every two years to complete online training on whistleblower protections. The Marine Corps also 

incorporates retaliation as part of its annual equal opportunity training, which includes an explanation 

of how to make a complaint.369

The Marine Corps also emphasizes the importance of training first-line supervisors in preventing and 

responding to retaliation. A branch head for the Marine Corps SAPR Headquarters commented that 

“our small unit leaders are ultimately the center of gravity.”370

Like the other Services, the Marine Corps uses social media and other far-reaching campaigns to 

disseminate training and education material to as wide an audience as possible.371 Illustrating this 

point, the Branch Head for the Marine Corps SAPR Headquarters noted that a single social media 

announcement about retaliation posted by the Marine Corps was able to reach more than 400,000 

people.372

5. U.S. Coast Guard

In the Coast Guard, the SAPR Program is responsible for developing training materials for mandatory 

annual training and special event training, such as Sexual Assault Awareness Month. Retaliation is one 

366 Transcript of JPP Public Meeting 256 (Apr. 10, 2015) (testimony of Rear Admiral Richard P. Snyder, U.S. Navy, Director, 

Twenty-First Century Sailor Office).

367 Navy’s Response to JPP Request for Information 67 (May 6, 2015).

368 Id.

369 Marine Corps’ Response to JPP Request for Information 67 (May 6, 2015).

370 Transcript of JPP Public Meeting 245 (Apr. 10, 2015) (testimony of Colonel Scott S. Jensen, Branch Head, USMC, HQ, 

Marine Corps SAPR).

371 Transcript of JPP Public Meeting 247 (Apr. 10, 2015) (testimony of Colonel Scott S. Jensen, Branch Head, USMC, HQ, 

Marine Corps SAPR).

372 Transcript of JPP Public Meeting 247 (Apr. 10, 2015) (testimony of Colonel Scott S. Jensen, Branch Head, USMC, HQ, 

Marine Corps SAPR).
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

of the topics covered.373 SARCs receive training on retaliation during their initial training, as well as 

during their ongoing advanced training.374

B. TRAINING SATURATION

While acknowledging the importance of the Services’ training efforts, some presenters expressed 

concern about the harm that ineffective and overly repetitive sexual assault training might do. A 

Navy command master chief warned the JPP of “unintended consequences of training saturation and 

duplication,” which include skepticism about the relevance of the material and low unit morale.375 He 

observed that “sometimes the aggravation with the training is actually transferred” and “can result in 

a little bit of retaliation as well.”376 A Coast Guard command master chief was similarly worried about 

training saturation, particularly online trainings that do not resonate with Service members and require 

only that they blindly “click through the buttons.”377

The JPP recognizes the importance of regular training and education in addressing the root causes of 

retaliation and preventing its future occurrence. To reduce the number of Service members who ignore 

or disregard training, the JPP recommends that the Services continue to develop innovative approaches 

to conveying information on retaliation, such as the video testimonials from victims who can describe 

its effects firsthand.

The JPP further recommends that the Services develop targeted training that can be ordered by a 

commander or other supervisor who needs to address problems of retaliation within the command. 

Such targeted training should be used to foster a command climate in which Service members 

understand the harm done by retaliation to victims, to unit morale and cohesion, and to mission 

readiness. The JPP also recommends that the Services develop commander training that educates 

leaders about the full range of options available for addressing retaliation, particularly when retaliatory 

acts are not prosecutable under the UCMJ.

373 Coast Guard’s Response to JPP Request for Information 67 (May 6, 2015).

374 Id.

375 Transcript of JPP Public Meeting 305 (May 19, 2015) (testimony of Command Master Chief Kevin Goodrich, U.S. Navy).

376 Transcript of JPP Public Meeting 305 (May 19, 2015) (testimony of Command Master Chief Kevin Goodrich, U.S. Navy).

377 Transcript of JPP Public Meeting 309 (May 19, 2015) (testimony of Command Master Chief Jason D. Griffin, U.S. Coast 

Guard).
71

Proposed and Pending Legislation 

Addressing Retaliation IX.

Congress has recently considered several bills on the issue of sexual assault in the military, two of 

which address retaliation. 

A. S. 1130, THE LEGAL JUSTICE FOR SERVICEMEMBERS ACT

Senators Barbara Boxer, Ron Wyden, and Edward J. Markey and Congresswoman Jackie Speier 

introduced the Legal Justice for Service Members Act in Congress on April 29, 2015.378 In the 

accompanying press release, the sponsors noted that “[a]lthough the [MWPA] has been updated 

periodically over the years, changes have not kept pace with protections afforded to civilian 

whistleblowers.”379 Accordingly, certain provisions of the bill seek to align the rights of military 

whistleblowers, including sexual assault victims, with the rights of their civilian counterparts. The JPP 

focused on one key provision of the bill.380

The bill proposes modifying the burden of proof in military whistleblower cases to mirror the 

burden of proof in civilian whistleblower cases.381 Currently, under DoD IG’s guidance for military 

whistleblower cases, all four elements—a protected communication; knowledge of the protected 

communication on the part of the responsible management official; a personnel action taken, 

threatened, or withheld; and a causal connection between the protected communication and the 

personnel action—must be established by a preponderance of the evidence.382 Thus, in keeping with 

the fourth element, if the evidence establishes that a negative personnel action would have been taken, 

threatened, or withheld even absent the protected communication, the IG will not substantiate the 

case.383

378 Press Release from Sen. Barbara Boxer, “Boxer, Wyden, Markey, Speier Introduce Legislation to Strengthen Protections 

for Military Whistleblowers” (Apr. 29, 2015) [hereinafter Military Whistleblower Press Release], available at http://www.

boxer.senate.gov/press/release/boxer-wyden-markey-speier-introduce-legislation-to-strengthen-protections-for-militarywhistleblowers/; see also S. 1130, 114th Cong., Legal Justice for Servicemembers Act of 2015 (2015). Senator Boxer 

authored the original MWPA in 1988.

379 Military Whistleblower Press Release, supra note 378. 

380 In addition to the provision considered by the JPP, the bill would also: (1) grant the investigating IG the authority to 

temporarily suspend adverse personnel actions against a whistleblower while the investigation is under way if the IG 

determines that the personnel action would result in immediate hardship to the Service member; (2) allow Service members 

to decline investigation of their retaliation claim by a Service IG in favor of a higher-level review by DoD IG; (3) require 

DoD IG to develop standardized training and investigation procedures for the Service IGs; (4) require the investigating IG 

to provide disciplinary recommendations in its report to a BCMR; (5) direct the BCMRs to conduct evidentiary hearings 

on significant cases presenting factual discrepancies that cannot be resolved without witness testimony; (6) instruct BCMRs 

to obtain relevant medical or personnel records if Service members make reasonable efforts but are still unable to obtain 

the records; (7) require that, to the extent practicable, administrative judges serve as presiding officers of the BCMRs; and 

(8) establish BCMR board membership as a full-time position with a five-year term limit. See Military Whistleblower Press 

Release, supra note 378; see also S. 1130, 114th Cong., Legal Justice for Servicemembers Act of 2015 (2015).

381 Military Whistleblower Press Release, supra note 378; see also S. 1130, 114th Cong., Legal Justice for Servicemembers Act 

of 2015 (2015).

382 DoD IG Guide, supra note 224, at 1-1, 1-6. 

383 Id. at 1-1, 1-6.

IX. Proposed and Pending Legislation Addressing Retaliation
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Under the Whistleblower Protection Act (WPA), which covers civilian employees of DoD, the 

complainant must prove by a preponderance of the evidence that the disclosure was a “contributing 

factor” in the adverse personnel action.384 The burden then shifts to the agency to demonstrate by clear 

and convincing evidence that it would have taken the same personnel action absent the disclosure.385

This is a different standard from that used in military whistleblower cases. 

Protect Our Defenders and Human Rights Watch both support revisions to the MWPA that are similar 

to this provision in the Legal Justice for Servicemembers Act.386 In a statement submitted to the JPP, 

POD recommended that the MWPA be strengthened, particularly by aligning the burden of proof to be 

consistent with federal civilian practices.387

The JPP considered the burdens of proof proposed by the Legal Justice for Service Members Act. The 

JPP recommends that the Secretary of Defense revise the policies in the DoD IG investigator guide for 

Service members filing complaints under the MWPA so that the elements and burdens of proof are 

aligned with those in the Whistleblower Protection Act for DoD civilians. Under a revised standard, if 

a military whistleblower shows by a preponderance of evidence that the disclosure is a “contributing 

factor” in an adverse personnel action, the burden of proof would shift to the responsible management 

official to demonstrate by clear and convincing evidence that he or she would have taken the same 

personnel action absent the disclosure. 

Since the MWPA does not address the burdens of proof for military whistleblowers, legislative action 

would not be required to change DoD policy regarding the elements and burdens of proof for military 

whistleblowers. Instead, the Secretary can ensure that the same standard applies for both Service 

members and civilians within DoD.

B. SECTION 539 OF THE FY 2016 NATIONAL DEFENSE AUTHORIZATION ACT 

(REQUIREMENT FOR A RETALIATION PREVENTION STRATEGY)

Under Section 539 of the FY16 NDAA, effective as of November 25, 2015, the Secretary of Defense 

is required to establish a comprehensive strategy to prevent retaliation against Service members who 

report sexual assault or intervene on behalf of victims of sexual assault.388 The retaliation strategy is 

expected to be released in the second quarter of fiscal year 2016.389

384 5 U.S.C. § 1221(e); see also 5 C.F.R. § 1209.7.

385 5 U.S.C. § 1221(e).

386 HRW Embattled, supra note 37, at 96; POD Comment, supra note 105.

387 POD Comment, supra note 105.

388 FY16 NDAA, supra note 319, at § 539. In May 2015, the Secretary of Defense directed the Acting Under Secretary 

of Defense for Personnel and Readiness, in collaboration with the Secretaries of the Military Departments and the 

Department of Defense Inspector General, to establish a comprehensive strategy to prevent retaliation against Service 

members who report or intervene on behalf of the victim in instances of sexual assault and other crimes. The plans 

for the strategy were to be reported to the Secretary of Defense by September 1, 2015. As of the date of this report, no 

information has been made publicly available regarding the retaliation strategy required under the Secretary of Defense’s 

directive. See U.S. Dep’t of Def., Memorandum from the Secretary of Defense on Initiatives to Address Sexual Assault 

Prevention and Response and Retaliation Associated with Reporting Crime (May 1, 2015), available at http://sapr.mil/

public/docs/reports/FY14_Annual/FY14_Annual_Report_SecDef_Memo_Initiatives.pdf.

389 U.S. Dep’t of Def., SAPRO, DACOWITS DoD SAPRO Retaliation Overview 11 (Dec. 9, 2015), available at http://

dacowits.defense.gov/Portals/48/Documents/Reports/2015/Documents/DoD%20SAPRO%20Retaliation%20Overview.

pdf.
73

IX. PROPOSED AND PENDING LEGISLATION ADDRESSING RETALIATION

As required by the NDAA, the retaliation strategy must include, at a minimum, three elements: first, 

bystander intervention programs emphasizing the importance of guarding against retaliation; second, 

DoD and Service policies and requirements to ensure protection from retaliation for victims of sexual 

assault and for Service members who intervene on their behalf; and third, additional training for 

commanders on methods and procedures to combat attitudes and beliefs that result in retaliation.390

In addition to the NDAA requirements, the JPP recommends that DoD establish enhanced policies 

for reporting, monitoring, and tracking retaliation in its strategy addressing retaliation against sexual 

assault victims. The strategy should specify (1) processes for reporting and investigating retaliation, (2) 

responsibility for the collection and monitoring of reports, and (3) mechanisms for tracking retaliation 

complaints and outcomes. The JPP believes that such policies will improve the processes for responding 

to and addressing retaliation. 

390 FY16 NDAA, supra note 319, at § 539.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
75

APPENDIX A: Service Regulations 

on Retaliation

Army Air Force Navy / 

Marine Corps Coast Guard

Service

Regulations 

Prohibiting 

Retaliation

Army Directive 

2014-20

Prohibition 

of Retaliation 

Against Soldiers 

for Reporting a 

Criminal Offense

(19 June 2014)

2. No Soldier may 

retaliate against a 

victim, an alleged 

victim or another 

member of the 

Armed Forces 

based on that 

individual’s report 

of a criminal 

offense. 

3. This directive 

implements [Section 

1709 of the FY14 

NDAA] effective 

immediately. 

The provisions 

of this directive 

are punitive, and 

violations may be 

punished under 

Article 92, Uniform 

Code of Military 

Justice (UCMJ).

AFI 36-2909_

AFGM2014-01 

Air Force Guidance 

Memorandum 

to AFI 36-2909, 

Professional and 

Unprofessional 

Relationships 

(19 June 2015)

Preamble. Military 

members, including 

Reserve members 

on active duty or 

inactive duty for 

training and ANG 

members in Federal 

service, who 

violate the specific 

prohibitions 

contained in 

paragraph 11 of 

this instruction 

can be prosecuted 

under either Article 

92 or Article 134 of 

the Uniform code 

of Military Justice 

(UCMJ), or both, 

as well as any other 

applicable Article 

of the UCMJ, as 

appropriate.

11. Prohibition 

on Retaliation. 

Military members 

shall not retaliate 

against an alleged 

victim or other 

military member 

who reports a 

criminal offense. 

ALNAV 030/14 

Retaliation Against 

Members of the 

Armed Forces 

Reporting a 

Criminal Offense

(April 2014)

RMKS/1. 

Retaliation against 

alleged victims or 

other members of 

the Armed Forces 

who report a 

criminal offense 

is prohibited. 

This prohibition 

constitutes a lawful 

general order, 

is punitive, and 

is applicable to 

all Department 

of the Navy 

(DON) personnel 

without further 

implementation. 

A violation by a 

person subject to 

the Uniform Code 

of Military Justice 

(UCMJ) (Chapter 

47 of Title 10, 

United States Code) 

is punishable as a 

violation of Article 

92 of the UCMJ. 

A violation by 

civilian personnel 

may be punishable 

under regulations 

governing 

disciplinary actions.

ALCOAST 208/14

Military 

Whistleblower 

Protection

(May 2014)

2. In accordance 

with [Section 

1709 of the FY14 

NDAA], Coast 

Guard personnel 

shall not retaliate 

against an alleged 

victim or other 

member of the 

Armed Forces 

who reports a 

criminal offense. 

This prohibition 

constitutes a 

lawful general 

order, is punitive, 

and is applicable 

to all Coast 

Guard personnel 

without further 

implementation. 

A violation by 

a person subject 

to the Uniform 

Code of Military 

Justice (UCMJ) is 

punishable as a 

violation of Article 

92, UCMJ.

A. Service Regulations on Retaliation
76

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

Army Air Force

Definitions of 

Retaliation

Army Directive 2014-20

Prohibition of Retaliation Against Soldiers 

for Reporting a Criminal Offense

4a. Subject to more specific guidance from 

the Department of Defense, for the purposes 

of this directive, “retaliation” is defined as:

(1) taking or threatening to take an 

adverse or unfavorable personnel action, 

or withholding or threatening to withhold 

a favorable personnel action, with respect 

to a victim or other member of the Armed 

Forces because the individual reported a 

criminal offense or was believed to have 

reported a criminal offense; or 

(2) ostracism, which is defined as excluding 

from social acceptance, privilege or 

friendship a victim or other member of the 

Armed Forces because: (a) the individual 

reported a criminal offense; (b) the 

individual was believed to have reported 

a criminal offense; or (c) the ostracism 

was motivated by the intent to discourage 

reporting of a criminal offense or otherwise 

to discourage the due administration of 

justice; or

(3) acts of cruelty, oppression or 

maltreatment (as these terms are described 

in paragraph 17c(2) of [MCM Part IV]), 

committed against a victim, an alleged 

victim or another member of the Armed 

Forces by peers or other persons, because 

the individual reported a criminal offense 

or was believed to have reported a criminal 

offense. 

AFI 36-2909_AFGM2014-01

Air Force Guidance Memorandum to AFI 

36-2909, Professional and Unprofessional 

Relationships

11.1. Retaliation. Retaliation is taking or 

threatening to take an adverse personnel 

action, or withholding or threatening to 

withhold a favorable personnel action, with 

respect to a military member because the 

member reported a criminal offense. 

11.2. Ostracism. Ostracism, which is a form 

of retaliation under this instruction, is the 

exclusion, from social acceptance, privilege 

or friendship with the intent to discourage 

reporting of a criminal offense or otherwise 

discourage the due administration of justice. 

11.3. Maltreatment. Maltreatment, which is 

a form of retaliation under this instruction, 

is treatment by peers or by other persons, 

that, when viewed objectively under all 

the circumstances, is abusive or otherwise 

unnecessary for any lawful purpose, that is 

done with the intent to discourage reporting 

of a criminal offense or otherwise discourage 

the due administration of justice, and 

that results in physical or mental harm or 

suffering, or reasonably could have caused, 

physical or mental harm or suffering. 

Maltreatment under this instruction 

is prohibited by the National Defense 

Authorization Act of Fiscal Year 2014, 

Section 1709(b), and does not require a 

senior-subordinate relationship as is required 

for maltreatment under Article 93, UCMJ.
77

APPENDIX A: SERVICE REGULATIONS ON RETALIATION

Navy / Marine Corps Coast Guard

SECNAVINST 5370.7D, Encl. 1

Military Whistleblower Protection

15. a. Per [Section 1709 of the FY14 NDAA], 

retaliation against a service member is one of the 

following actions when taken because that member 

reported, either formally or informally, a criminal 

offense:

(1) Taking or threatening to take an unfavorable 

or adverse personnel action, or withholding or 

threatening to withhold a favorable personnel action; 

(2) Ostracism, which is the exclusion from social 

acceptance, privilege, or friendship with intent 

to discourage reporting of a criminal offense or 

otherwise discourage the due administration of 

justice; or

(3) Maltreatment, which is treatment by peers or 

by other persons, that, when viewed objectively 

under all the circumstances, is abusive or otherwise 

unwarranted, unjustified, and unnecessary for any 

lawful purpose, that is done with intent to discourage 

reporting of a criminal offense or otherwise 

discourage the due administration of justice, and 

that results in physical or mental harm or suffering, 

or reasonably could have caused, physical or 

mental harm or suffering. Maltreatment under this 

instruction does not require a senior-subordinate 

relationship as is required for maltreatment under 

Article 93, UCMJ.

ALCOAST 208/14

Military Whistleblower Protection

3. For the purpose of this order, retaliation against a 

military member is one of the following actions taken 

because that member, either formally or informally, 

reported a criminal offense:

A. Taking or threatening to take an unfavorable 

or adverse personnel action, or withholding or 

threatening to withhold a favorable personnel action,

B. Ostracism, which is the exclusion from social 

acceptance, privilege, or friendship with the intent 

to discourage that individual from reporting a 

criminal offense or otherwise discourage the due 

administration of justice, or

C. Maltreatment, which is treatment by peers or 

by other persons, that, when viewed objectively 

under all the circumstances, is abusive or otherwise 

unwarranted, unjustified, and unnecessary for 

any lawful purpose that is done with the intent 

to discourage reporting of a criminal offense or 

otherwise discourage the due administration of 

justice and that results in physical or mental harm or 

suffering, or reasonably could have caused physical 

or mental harm or suffering. Maltreatment does 

not require a senior-subordinate relationship as is 

required for maltreatment under Article 93, UCMJ.
78

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
79

APPENDIX B: Judicial Proceedings Panel 

Authorizing Statutes

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013

SECTION 576. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM 

CODE OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL 

ASSAULT CASES.

(a) INDEPENDENT REVIEWS AND ASSESSMENTS REQUIRED.—

(2) JUDICIAL PROCEEDINGS SINCE FISCAL YEAR 2012 AMENDMENTS.—The Secretary 

of Defense shall establish a panel to conduct an independent review and assessment of judicial 

proceedings conducted under the Uniform Code of Military Justice involving adult sexual 

assault and related offenses since the amendments made to the Uniform Code of Military Justice 

by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 

112–81; 125 Stat. 1404) for the purpose of developing recommendations for improvements to 

such proceedings.

(b) ESTABLISHMENT OF INDEPENDENT REVIEW PANELS.

(1) COMPOSITION.

(B)JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall be 

appointed by the Secretary of Defense and consist of five members, two of whom must have 

also served on the panel established under subsection (a)(1).

(2) QUALIFICATIONS.—The members of each panel shall be selected from among private United 

States citizens who collectively possess expertise in military law, civilian law, the investigation, 

prosecution, and adjudication of sexual assaults in State and Federal criminal courts, victim 

advocacy, treatment for victims, military justice, the organization and missions of the Armed 

Forces, and offenses relating to rape, sexual assault, and other adult sexual assault crimes.

(3) CHAIR.—The chair of each panel shall be appointed by the Secretary of Defense from among 

the members of the panel.

(4) PERIOD OF APPOINTMENT; VACANCIES.—Members shall be appointed for the life of the 

panel. Any vacancy in a panel shall be filled in the same manner as the original appointment.

(5) DEADLINE FOR APPOINTMENTS.—

(B)JUDICIAL PROCEEDINGS PANEL.—All original appointments to the panel required by 

subsection (a)(2) shall be made before the termination date of the panel established under 

subsection (a)(1), but no later than 30 days before the termination date.

(6) MEETINGS.—A panel shall meet at the call of the chair.

B. Judicial Proceedings Panel Authorizing Statutes
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

(7) FIRST MEETING.—The chair shall call the first meeting of a panel not later than 60 days after 

the date of the appointment of all the members of the panel.

(c) REPORTS AND DURATION.—

(2) JUDICIAL PROCEEDINGS PANEL.—

(A)FIRST REPORT.—The panel established under subsection (a)(2) shall submit a first report, 

including any proposals for legislative or administrative changes the panel considers 

appropriate, to the Secretary of Defense and the Committees on Armed Services of the 

Senate and the House of Representatives not later than 180 days after the first meeting of 

the panel.

(B) SUBSEQUENT REPORTS.—The panel established under subsection (a)(2) shall submit 

subsequent reports during fiscal years 2014 through 2017.

(C)TERMINATION.—The panel established under subsection (a)(2) shall terminate on 

September 30, 2017.

(d) DUTIES OF PANELS.—

(2) JUDICIAL PROCEEDINGS PANEL.—The panel required by subsection (a)(2) shall perform 

the following duties:

(A)Assess and make recommendations for improvements in the implementation of the reforms 

to the offenses relating to rape, sexual assault, and other sexual misconduct under the 

Uniform Code of Military Justice that were enacted by section 541 of the National Defense 

Authorization Act for Fiscal Year 2012 (Public Law 112– 81; 125 Stat. 1404).

(B) Review and evaluate current trends in response to sexual assault crimes whether by courtsmartial proceedings, non-judicial punishment and administrative actions, including the 

number of punishments by type, and the consistency and appropriateness of the decisions, 

punishments, and administrative actions based on the facts of individual cases.

(C)Identify any trends in punishments rendered by military courts, including general, special, 

and summary courts-martial, in response to sexual assault, including the number of 

punishments by type, and the consistency of the punishments, based on the facts of each 

case compared with the punishments rendered by Federal and State criminal courts.

(D) Review and evaluate court-martial convictions for sexual assault in the year covered by 

the most-recent report required by subsection (c)(2) and the number and description of 

instances when punishments were reduced or set aside upon appeal and the instances in 

which the defendant appealed following a plea agreement, if such information is available.

(E) Review and assess those instances in which prior sexual conduct of the alleged victim was 

considered in a proceeding under section 832 of title 10, United States Code (article 32 of 

the Uniform Code of Military Justice),and any instances in which prior sexual conduct was 

determined to be inadmissible.
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APPENDIX B: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

(F) Review and assess those instances in which evidence of prior sexual conduct of the alleged 

victim was introduced by the defense in a court-martial and what impact that evidence had 

on the case.

(G) Building on the data compiled as a result of paragraph (1)(D), assess the trends in the 

training and experience levels of military defense and trial counsel in adult sexual assault 

cases and the impact of those trends in the prosecution and adjudication of such cases.

(H)Monitor trends in the development, utilization and effectiveness of the special victims 

capabilities required by section 573 of this Act.

(I) Monitor the implementation of the April 20, 2012, Secretary of Defense policy 

memorandum regarding withholding initial disposition authority under the Uniform Code 

of Military Justice in certain sexual assault cases.

(J) Consider such other matters and materials as the panel considers appropriate for purposes 

of the reports.

(3) UTILIZATION OF OTHER STUDIES.—In conducting reviews and assessments and preparing 

reports, a panel may review, and incorporate as appropriate, the data and findings of applicable 

ongoing and completed studies.

(e) AUTHORITY OF PANELS.—

(1) HEARINGS.—A panel may hold such hearings, sit and act at such times and places, take such 

testimony, and receive such evidence as the panel considers appropriate to carry out its duties 

under this section.

(2) INFORMATION FROM FEDERAL AGENCIES.—Upon request by the chair of a panel, a 

department or agency of the Federal Government shall provide information that the panel 

considers necessary to carry out its duties under this section.

(f) PERSONNEL MATTERS.—

(1) PAY OF MEMBERS.—Members of a panel shall serve without pay by reason of their work on 

the panel.

(2) TRAVEL EXPENSES.—The members of a panel shall be allowed travel expenses, including per 

diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I 

of chapter 57 of title 5, United States Code, while away from their homes or regular places of 

business in the performance or services for the panel.

(3) STAFFING AND RESOURCES.—The Secretary of Defense shall provide staffing and resources 

to support the panels, except that the Secretary may not assign primary responsibility for such 

staffing and resources to the Sexual Assault Prevention and Response Office.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014

SEC. 1731. INDEPENDENT REVIEWS AND ASSESSMENTS OF UNIFORM CODE 

OF MILITARY JUSTICE AND JUDICIAL PROCEEDINGS OF SEXUAL ASSAULT 

CASES.

(b) ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.—

(1) ADDITIONAL ASSESSMENTS SPECIFIED.—The independent panel established by 

the Secretary of Defense under subsection (a)(2) of section 576 of the National Defense 

Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 1758), known as the 

“judicial proceedings panel”, shall conduct the following:

(A)An assessment of the likely consequences of amending the definition of rape and sexual 

assault under section 920 of title 10, United States Code (article 120 of the Uniform Code 

of Military Justice), to expressly cover a situation in which a person subject to chapter 47 

of title 10, United States Code (the Uniform Code of Military Justice), commits a sexual act 

upon another person by abusing one’s position in the chain of command of the other person 

to gain access to or coerce the other person.

(B) An assessment of the implementation and effect of section 1044e of title 10, United States 

Code, as added by section 1716, and make such recommendations for modification of such 

section 1044e as the judicial proceedings panel considers appropriate.

(C)An assessment of the implementation and effect of the mandatory minimum sentences 

established by section 856(b) of title 10, United States Code (article 56(b) of the Uniform 

Code of Military Justice), as added by section 1705, and the appropriateness of statutorily 

mandated minimum sentencing provisions for additional offenses under chapter 47 of title 

10, United States Code (the Uniform Code of Military Justice).

(D)An assessment of the adequacy of the provision of compensation and restitution for victims 

of offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military 

Justice), 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 

section 939 of title 10, United States Code (article 139 of the Uniform Code of Military 

Justice).

(iii) Requiring restitution by members of the Armed Forces to victims of their offenses upon 

the direction of a court-martial.

(2) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

assessments required by paragraph (1) in one of the reports required by subsection (c)(2)(B) of 

section 576 of the National Defense Authorization Act for Fiscal Year 2013.
83

APPENDIX B: JUDICIAL PROCEEDINGS PANEL AUTHORIZING STATUTES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2015

SEC. 545. ADDITIONAL DUTIES FOR JUDICIAL PROCEEDINGS PANEL.

(a) ADDITIONAL DUTIES IMPOSED.—The independent panel established by the Secretary of 

Defense under section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 

(Public Law 112–239; 126 Stat. 1758), known as the ‘‘judicial proceedings panel’’, shall perform 

the following additional duties:

(1) Conduct a review and assessment regarding the impact of the use of any mental health records 

of the victim of an offense under chapter 47 of title 10, United States Code (the Uniform Code 

of Military Justice), by the accused during the preliminary hearing conducted under section 

832 of such title (article 32 of the Uniform Code of Military Justice), and during court-martial 

proceedings, as compared to the use of similar records in civilian criminal legal proceedings.

(2) Conduct a review and assessment regarding the establishment of a privilege under the Military 

Rules of Evidence against the disclosure of communications between—

(A)users of and personnel staffing the Department of Defense Safe Helpline; and

(B) users of and personnel staffing of the 26 Department of Defense Safe Help Room.

(b) SUBMISSION OF RESULTS.—The judicial proceedings panel shall include the results of the 

reviews and assessments conducted under subsection (a) in one of the reports required by section 

576(c)(2)(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 

126 Stat. 1760).

SEC. 546. DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, 

PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

(f) DUE DATE FOR ANNUAL REPORT OF JUDICIAL PROCEEDINGS PANEL – Section 576(c)(2)

(B) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 

1760) is amended by inserting “annually” thereafter” after “reports”.
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
85

APPENDIX C: Judicial Proceedings 

Panel Members

HONORABLE ELIZABETH HOLTZMAN – JPP CHAIR

Ms. Holtzman is counsel with the law firm Herrick, Feinstein LLP. Ms. Holtzman served for eight 

years as a U.S. representative (D-NY, 1973–81). While in office, she authored the Rape Privacy Act. 

She then served for eight years as District Attorney of Kings County, New York (Brooklyn), the fourthlargest DA’s office in the country, where she helped change rape laws, improve standards and methods 

for prosecution, and develop programs to train police and medical personnel. In 1989 Ms. Holtzman 

became the only woman ever elected Comptroller of New York City. Ms. Holtzman graduated from 

Radcliffe College, magna cum laude, and received her law degree from Harvard Law School.

HONORABLE BARBARA S. JONES, U.S. DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK (RETIRED) 

Judge Jones is a partner at the law firm Zuckerman Spaeder LLP. She served as a judge in the U.S. 

District Court for the Southern District of New York for sixteen years, and heard a wide range of cases 

relating to accounting and securities fraud, antitrust, fraud and corruption involving city contracts 

and federal loan programs, labor racketeering, and terrorism. Before being nominated to the bench in 

1995, Judge Jones was the Chief Assistant to Robert M. Morgenthau, then the District Attorney of 

New York County (Manhattan). In that role she supervised community affairs, public information, 

and oversaw the work of the Homicide Investigation Unit. In addition to her judicial service, she 

spent more than two decades as a prosecutor. Judge Jones was a special attorney of the United States 

Department of Justice (DOJ) Organized Crime & Racketeering, Criminal Division, and the Manhattan 

Strike Force Against Organized Crime and Racketeering. Previously, Judge Jones served as an Assistant 

U.S. Attorney, as chief of the General Crimes Unit, and as chief of the Organized Crime Unit in the 

Southern District of New York.

MR. VICTOR STONE

Victor Stone represents crime victims at the Maryland Crime Victims Resource Center, Inc. Previously, 

Mr. Stone served as Special Counsel at the United States Department of Justice. He spent forty years 

with the Department of Justice in numerous positions, including as Chief Counsel, FBI Foreign 

Terrorist Task Force, and as Assistant U.S. Attorney in Oregon and the District of Columbia. He 

has experience working on victim and prisoners’ rights, serving on committees that resulted in the 

enactment of the Crime Victims’ Rights Act and updates to the ABA Standards for Prisoner Rights. 

After graduating from Harvard Law School, he clerked on the United States Court of Appeals for the 

Ninth Circuit.

C. Judicial Proceedings Panel Members
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

PROFESSOR THOMAS W. TAYLOR

Tom Taylor teaches graduate courses at Duke University’s Sanford School of Public Policy. Previously, 

he served as a decorated and distinguished Army officer, civil servant, and member of the Senior 

Executive Service. During a twenty-seven-year career in the Pentagon, he advised seven secretaries and 

seven Chiefs of Staff of the Army, and as the senior leader of the Army legal community he worked on 

a wide variety of operational, personnel, and intelligence issues. He graduated with high honors from 

Guilford College, Greensboro, N.C., and with honors from the University of North Carolina at Chapel 

Hill law school, where he was a Morehead Fellow, a member of the law review, and a member of the 

Order of the Coif. 

VICE ADMIRAL PATRICIA A. TRACEY, U.S. NAVY (RETIRED) 

Pat Tracey is the Vice President of Homeland Security and Defense for HP Enterprise Services, U.S. 

Public Sector, developing dynamic strategies and providing support to various government agencies, 

including the U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of 

State, and U.S. Department of Defense. In 2006, after thirty-four years in the U.S. Navy, she retired as 

the first female vice admiral. As Chief of the Navy’s $5 billion global education and training enterprise, 

she led a successful revolution in training technology to improve the quality, access, and effectiveness 

of Navy training while lowering its cost. Admiral Tracey graduated from the College of New Rochelle 

and the Naval Postgraduate School, with distinction, and completed a fellowship with the Chief of 

Naval Operations’ Strategic Studies Group.
87

APPENDIX D: Staff Members and 

Designated Federal Officials

JUDICIAL PROCEEDINGS 

PANEL STAFF

Colonel Kyle Green,

U.S. Air Force, Staff Director

Lieutenant Colonel Kelly McGovern,

U.S. Army, Deputy Staff Director

Mr. Dale Trexler, Chief of Staff

Mr. Roger Capretta, Supervising Paralegal

(June 2014 - July 2015)

Ms. Julie Carson, Attorney and Legislative 

Analyst

Ms. Janice Chayt, Investigator

Ms. Alice Falk, Editor

Ms. Nalini Gupta, Attorney

Lieutenant Colonel Glen Hines,

U.S. Marine Corps, Attorney

Mr. Kirtland Marsh, Attorney

Ms. Laurel Prucha Moran, Graphic Designer

Mr. Douglas Nelson, Attorney

(June 2014 - October 2015)

Mr. Matt Osborn, Attorney

(August 2014 - October 2015)

Ms. Meghan Peters, Attorney 

Ms. Terri Saunders, Attorney

Ms. Meghan Tokash, Attorney

(December 2014 - October 2015)

Ms. Stayce Rozell, Senior Paralegal

Ms. Tiffany Williams, Supervising Paralegal

Ms. Sharon Zahn, Senior Paralegal

DESIGNATED FEDERAL OFFICIALS

Ms. Maria Fried, Designated Federal Official

Mr. William Sprance, 

Alternate Designated Federal Official

Major Jacqueline M. Stingl, 

Alternate Designated Federal Official

Mr. Dwight Sullivan, 

Alternate Designated Federal Official

D. Staff Members and Designated Federal Officials
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
89

APPENDIX E: Judicial Proceedings Panel 

Public Meetings Addressing 

Retaliation

JPP PUBLIC 

MEETINGS

PRESENTERS AND DELIBERATIONS

on Retaliation

April 10, 2015

Public Meeting 

of the JPP at the

U.S. District Court 

for the District 

of Columbia, 

Washington, D.C

• Major General Jeffrey Snow, Director, DoD SAPRO 

• Dr. Nathan Galbreath, Senior Executive Advisor, DoD SAPRO 

• Dr. Lilia M. Cortina, Professor, University of Michigan 

• Dr. Vicki Magley, Professor, University of Connecticut 

• Mr. Michael F. Noone, Professor, Columbus Law School, Catholic 

University 

• Dr. Patricia J. Harned, Chief Executive Officer, Ethics & Compliance 

Initiative

• Dr. Matthew F. Soulier, University of California, Davis 

• Dr. Veronique N. Valliere, Valliere & Counseling Associates, Inc. 

• Ms. Monique Ferrell, Director, U.S. Army SHARP

• Rear Admiral Richard P. Snyder, Director, Twenty-First Century Sailor 

Office

• Colonel Scott S. Jensen, Branch Head, USMC, HQ, Marine Corps SAPR

• Mr. Jay Aanrud, Deputy Director, HQ, U.S. Air Force SAPR

• Mr. Patrick Gookin, Director, DoD IG Hotline & Whistleblower 

Protection Ombudsman 

• Ms. Nilgun Tolek, Director, DoD IG Whistleblower Reprisal 

Investigations 

• Mr. John K. Vallario, Deputy Executive Director, Air Force BCMR 

• Mr. Douglas Huff, Legal Advisor, Army Review Boards Agency

• Mr. Jon Ruskin, Board for Correction of Naval Records Counsel 

• Ms. Julia Andrews, Chair, Coast Guard BCMR

E: Judicial Proceedings Panel Public Meetings 

Addressing Retaliation
90

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

JPP PUBLIC 

MEETINGS

PRESENTERS AND DELIBERATIONS

on Retaliation

May 19, 2015

Public Meeting 

of the JPP at the

U.S. District Court 

for the District 

of Columbia, 

Washington, D.C.

• Ms. Sara Darehshori, Senior Counsel, Human Rights Watch, U.S. Program 

• Ms. Meghan Rhoad, Researcher, Human Rights Watch, Women’s Rights 

Division

• Ms. V.P., Retired U.S. Army Captain

• Master Sergeant T.S., U.S. Air Force 

• Petty Officer Third Class D.M., U.S. Coast Guard

• Ms. C.B., Former U.S. Air Force Enlisted Member

• 1st Lieutenant C.B., U.S. Army 

• Ms. J.S., Retired U.S. Air Force Technical Sergeant

• Ms. Susan L. Burke, Victim Counsel, Law Offices of Susan L. Burke

• Major K.V., U.S. Air Force

• Staff Sergeant E.A., U.S. Army 

• Petty Officer First Class S.F., U.S. Coast Guard

• Ms. A.N., Former U.S. Navy Petty Officer Second Class 

• Staff Sergeant N.L., U.S. Air Force

• Ms. A.H., Spouse of U.S. Air Force Staff Sergeant

• Lance Corporal J.J., U.S. Marine Corps

• Ms. Nancy Pike, U.S. Air Force SARC, Seymour-Johnson Air Force Base, 

North Carolina

• Mr. Michael Starkey, U.S. Air Force SAPR Victim Advocate, DavisMonthan Air Force Base, Arizona

• Mr. Magnus Graham, U.S. Coast Guard SARC Coordinator, Portsmouth, 

Virginia

• Ms. Marie A. Brodie, U.S. Marine Corps SARC, Marine Corps Base 

Camp Lejeune, North Carolina

• Sergeant First Class Bridgett Joseph, U.S. Army SARC, Schofield Barracks, 

Hawaii

• Ms. Kim Agnew, U.S. Navy SARC, Naval Support Activity, Bethesda, 

Maryland

• Command Chief Master Sergeant Craig A. Neri, U.S. Air Force, 45th 

Space Wing, Patrick Air Force Base, Florida

• Command Master Chief Kevin Goodrich, U.S. Navy, Naval Air Station 

Hampton Roads, Virginia

• Command Master Chief Jason D. Griffin, U.S. Coast Guard, 7th District

• Master Sergeant Michelle M. Johnson, U.S. Army, Pentagon, Virginia

• Staff Sergeant LeeAnn B. Nelson, U.S. Marine Corps Uniformed Victim 

Advocate, Marine Corps Base Quantico, Virginia

• Brigadier General David Harris, U.S. Air Force, Commander, 96th Test 

Wing, Eglin Air Force Base, Florida (Continued)
91

APPENDIX E: JUDICIAL PROCEEDINGS PANEL PUBLIC MEETINGS ADDRESSING RETALIATION

JPP PUBLIC 

MEETINGS

PRESENTERS AND DELIBERATIONS

on Retaliation

(Continued)

May 19, 2015

Public Meeting 

of the JPP at the

U.S. District Court 

for the District 

of Columbia, 

Washington, D.C.

• Captain Heidi Fleming, U.S. Navy, Commanding Officer, Naval Air 

Station Patuxent River, Maryland

• Captain Jeffrey C. Westling, U.S. Coast Guard, Commander, U.S. Coast 

Guard Base Kodiak, Alaska

• Colonel Allen Broughton, U.S. Marine Corps, Chief of Staff, Marine 

Corps Installations National Capital Region/Marine Corps Base Quantico, 

Virginia

• Colonel Brian Foley, U.S. Army, Garrison Commander, Fort Meade, 

Maryland

June 18, 2015

Public Meeting 

of the JPP at the

The George 

Washington 

University Law 

School, Washington, 

D.C.

• Lieutenant Commander James Toohey, U.S. Navy, Victims’ Legal Counsel

• Lieutenant Commander Kismet Wunder, U.S. Coast Guard, Special 

Victims’ Counsel

• Captain George “Rob” Lavine III, U.S. Army, Special Victims’ Counsel

• Captain Micah Smith, U.S. Air Force, Special Victims’ Counsel 

• Major Chantell Higgins, U.S. Marine Corps, Victims’ Legal Counsel

August 6, 2015

Public Meeting 

of the JPP at the

The George 

Washington 

University Law 

School, 

Washington, D.C.

• Panel deliberations (no speakers)

September 18, 2015

Public Meeting 

of the JPP at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

JPP PUBLIC 

MEETINGS

PRESENTERS AND DELIBERATIONS

on Retaliation

October 9, 2015

Public Meeting

of the JPP at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)

November 6, 2015

Public Meeting

of the JPP at the

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)

December 11, 2015

Public Meeting 

of the JPP at the 

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations (no speakers)

January 15, 2016

Public Meeting

of the JPP at the 

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations & review of draft report (no speakers)

January 22, 2016

Public Meeting

of the JPP at the 

Holiday Inn Ballston 

at Arlington, VA

• Panel deliberations & report approval (no speakers)
93

APPENDIX F: Acronyms and 

Abbreviations

AF SAPRO Air Force Sexual Assault 

Prevention and Response Office 

BCMR Board for Correction of Military 

Records

CDR commander

CMG case management group

DD Form Department of Defense Form

DoD Department of Defense

DSAID Defense Sexual Assault Incident 

Database

FY fiscal year

GAO Government Accountability Office

IG inspector general

JPP Judicial Proceedings Panel

MCIO military criminal investigative 

organization

MJRG Military Justice Review Group

M.R.E. Military Rules of Evidence

MWPA Military Whistleblower Protection 

Act

NCO noncommissioned officer

NDAA National Defense Authorization 

Act

POD Protect Our Defenders

POTUS President of the United States

PTSD post-traumatic stress disorder

RMWS RAND Military Workplace Study

SAPR Sexual Assault Prevention and 

Response

SAPRO Sexual Assault Prevention and 

Response Office

SARB sexual assault review board

SARC sexual assault response coordinator

SHARP Sexual Harassment/Assault 

Response and Prevention

SVC special victims’ counsel

UCMJ Uniform Code of Military Justice

USD(P&R) Under Secretary of Defense for 

Personnel and Readiness

VA victim advocate

VLC victims’ legal counsel

VWAP Victim Witness Assistance Program

WPA Whistleblower Protection Act

F. Acronyms and Abbreviations
94

REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES
95

APPENDIX G: Sources Consulted

1. U.S. CONSTITUTION

2. LEGISLATIVE SOURCES

a. Enacted Statutes

5 C.F.R. § 1209.7 (Burden and degree of proof)

5 U.S.C. § 1221 (Individual right of action in certain reprisal cases)

5 U.S.C. App. 2 (Federal Advisory Committee Act)

10 U.S.C. §§ 801-946 (Uniform Code of Military Justice)

10 U.S.C. § 1034 (Protected communications; prohibition of retaliatory personnel actions)

10 U.S.C. § 1044e (Special Victims’ Counsel for victims of sex-related offenses)

10 U.S.C. § 1552 (Correction of military records: claims incident thereto)

National Defense Authorization Act for Fiscal Year 1989, Pub. L. No. 100-456, 102 Stat. 1918 (1988)

National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 126 Stat. 1632 (2013)

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)

National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3292 (2014)

National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92 (2015)

b. Proposed Statutes

S. 1130, 114th Cong., Legal Justice for Servicemembers Act of 2015 (2015)

3. RULES AND REGULATIONS

a. Executive Orders

Manual for Courts-Martial, United States (2012), available at http://www.loc.gov/rr/frd/

Military_Law/pdf/MCM-2012.pdf

b. Department of Defense

DoD Directive 6495.01, Sexual Assault Prevention and Response (SAPR) Program (Jan. 23, 2012) 

(Change 2, Jan. 20, 2015), available at http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf

DoD Directive 7050.06, Military Whistleblower Protection (Apr. 17, 2015), available at 

http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf

G. Sources Consulted
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REPORT ON RETALIATION RELATED TO SEXUAL ASSAULT OFFENSES

DoD Instruction 5505.18, Investigation of Adult Sexual Assault in the Department of Defense

(Jan. 25, 2013) (Change 2, June 18, 2015), available at http://www.dtic.mil/whs/directives/corres/

pdf/550518p.pdf

DoD Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures

(Mar. 28, 2013) (Change 2, July 7, 2015), available at http://www.dtic.mil/whs/directives/corres/

pdf/649502p.pdf

c. Services

U.S. Coast Guard Commandant, ALCOAST 208/14, Military Whistleblower Protection

(May 2014), available at http://jpp.whs.mil/Public/docs/07-RFI/Set_3/Responses/RFI_Attachment_

Q88_USCG.pdf

U.S. Coast Guard Commandant, ALCOAST 320/14, SAPR Crisis Intervention Teams (SAPR CIT) 

(July 2014), available at https://www.uscg.mil/announcements/ALCOAST/320-14_ALCOAST.txt

U.S. Coast Guard Commandant, Instruction M5830.1A, Administrative Investigations Manual

(Sept. 2007), available at http://www.uscg.mil/directives/cim/5000-5999/CIM_5830_1A.pdf

U.S. Dep’t of the Air Force, Commander-Directed Investigation (CDI) Guide (Apr. 26, 2010), 

available at http://www.af.mil/Portals/1/documents/ig/cdi-guide.pdf

U.S. Dep’t of Army, Army Regulation 15-6, Procedures for Investigating Officers and Boards of

Officers (Oct. 2, 2006), available at http://armypubs.army.mil/epubs/pdf/r15_6.pdf

U.S. Dep’t of Army, Directive 2014-20, Prohibition of Retaliation Against Soldiers for Reporting a

Criminal Offense (June 19, 2014) available at http://armypubs.army.mil/epubs/pdf/ad2014_20.pdf

U.S. Dep’t of Army, Directive 2015-16, Command Engagement to Prevent Retaliation

(Mar. 4, 2015), available at http://www.apd.army.mil/pdffiles/ad2015_16.pdf

U.S. Dep’t of Navy, JAG Instruction 5800.7F, Manual of the Judge Advocate General

(June 26, 2012), available at http://www.jag.navy.mil/library/instructions/JAGMAN2012.pdf

U.S. Dep’t of Navy, Sec’y of Navy Instruction 5300.40, Department of the Navy 21st Century Sailor

and Marine Initiative (June 27, 2013), available at http://www.21stcentury.navy.mil/Documents/

SECNAVINST%205300.40.pdf

U.S. Dep’t of Navy, Sec’y of Navy Instruction 5370.7D, Military Whistleblower Protection

Act (Dec. 4, 2014), available at http://doni.daps.dla.mil/Directives/05000%20General%20

Management%20Security%20and%20Safety%20Services/05-300%20Manpower%20

Personnel%20Support/5370.7D.pdf

4. MEETINGS AND HEARINGS

Transcript of JPP Public Meeting (Apr. 10, 2015)

Transcript of JPP Public Meeting (May 19, 2015

Transcript of JPP Public Meeting (June 18, 2015)

Transcript of JPP Public Meeting (Aug. 6, 2015)

Transcript of JPP Public Meeting (Sept. 18, 2015)

Transcript of JPP Public Meeting (Oct. 9, 2015)
97

APPENDIX G: SOURCES CONSULTED

Transcript of JPP Public Meeting (Nov. 6, 2015)

Transcript of JPP Public Meeting (Dec. 11, 2015)

Transcript of JPP Public Meeting (Jan. 15, 2016)

Transcript of JPP Public Meeting (Jan. 22, 2016)

5. MILITARY POLICY AND GUIDANCE

a. Department of Defense

Memorandum from the Secretary of Defense on Initiatives to Address Sexual Assault Prevention and 

Response and Retaliation Associated with Reporting Crime (May 1, 2015), available at

http://sapr.mil/public/docs/reports/FY14_Annual/FY14_Annual_Report_SecDef_Memo_

Initiatives.pdf

Memorandum from the Secretary of Defense on Sexual Assault Prevention and Response 

(Dec. 3, 2014), available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/FY14_

DoD_Report_to_POTUS_SecDef_Initiatives.pdf

Memorandum from the Under Secretary of Defense for Personnel and Readiness on Data Call on 

Retaliation for the Fiscal Year 2014 Department of Defense Annual Report on Sexual Assault 

in the Military (Mar. 12, 2015), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/06-

Retaliation/20150410/11_SECDEF_Retaliation_Memos.pdf

U.S. Dep’t of Def., Form 2701, Initial Information for Victims and Witnesses of Crime

(Aug. 2013), available at http://www.dtic.mil/whs/directives/forms/eforms/dd2701.pdf

U.S. Dep’t of Def., Form 2910, Victim Reporting Preference Statement (June 2014), available at

http://www.dtic.mil/whs/directives/forms/dd/ddforms2500-2999.htm

U.S. Dep’t of Def. Inspector General, Guide to Investigating Military

Whistleblower Reprisal and Restriction Complaints (June 29, 2015), 

available at http://www.dodig.mil/programs/whistleblower/pdfs/ioguide/

GuideToInvestigatingMilitaryWhistleblowerReprisalAndRestrictionComplaints.pdf

U.S. Dep’t of Def., Sexual Assault Prevention and Response Office, DACOWITS DoD SAPRO 

Retaliation Overview (Dec. 9, 2015), available at http://dacowits.defense.gov/Portals/48/

Documents/Reports/2015/Documents/DoD%20SAPRO%20Retaliation%20Overview.pdf

U.S. Dep’t of Def., Sexual Assault Prevention and Response Office, Retaliation Overview (Apr. 10, 

2015), available at http://jpp.whs.mil/Public/docs/03_Topic-Areas/06-Retaliation/20150410/12_

SAPRO_Retaliation_InfoPaper.pdf

b. Services

U.S. Dep’t of Air Force, Air Force Guidance Memorandum to AFI 36-2909, Professional and 

Unprofessional Relationship (June 19, 2015), available at http://static.e-publishing.af.mil/

production/1/af_ja/publication/afi36-2909/afi36-2909.pdf

U.S. Dep’t of the Air Force, Memorandum on Change 1 to 27 February 15 Memorandum—Updated 

Procedures Regarding Reporting and Tracking Victim Retaliation in Sexual Assault Cases 

(Mar. 17, 2015), available at http://jpp.whs.mil/Public/docs/07-RFI/Set_3/Responses/RFI_

Attachment_USAF_Attachment.pdf
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6. REPORTS

a. DoD and DoD Agencies

Defense Manpower Data Center (DMDC), Survey Note on 2012 Workplace and Gender Relations

Survey of Active Duty Members (Mar. 15, 2013), available at http://www.sapr.mil/public/docs/

research/2012_workplace_and_gender_relations_survey_of_active_duty_members-survey_note_

and_briefing.pdf 

Military Justice Review Group, Report of the Military Justice Review Group, Part I: UCMJ 

Recommendations (Dec. 22, 2015), available at http://www.dod.gov/dodgc/mjrg.html

U.S. Dep’t of Def., Report on Prohibiting Retaliation Against an Alleged Victim or other Member

of the Armed Forces who Reports a Criminal Offense (June 2014), available at http://jpp.

whs.mil/Public/docs/03_Topic-Areas/06-Retaliation/20150410/02_DoDReport_Response_

FY14Section1709_201406.pdf

U.S. Dep’t of Def., Report to the President of the United States on Sexual Assault Prevention and

Response (Nov. 25, 2014) available at http://www.sapr.mil/public/docs/reports/FY14_POTUS/

FY14_DoD_Report_to_POTUS_SAPRO_Report.pdf

U.S. Dep’t of Def., SAPRO, Department of Defense Annual Report on Sexual Assault in the Military: 

Fiscal Year 2014 (Apr. 29, 2015), available at http://sapr.mil/public/docs/reports/FY14_Annual/

FY14_DoD_SAPRO_Annual_Report_on_Sexual_Assault.pdf

b. Other Reports

Government Accountability Office, Report 12-362, Whistleblower Protection: Actions Needed to

Improve DOD’s Military Whistleblower Reprisal Protection (Feb. 2012), available at

http://www.gao.gov/products/GAO-12-362

Government Accountability Office, Report 15-477: Whistleblower Protections: DOD Needs to

Enhance Oversight of Military Whistleblower Reprisal Investigations (May 2015), available at

http://www.gao.gov/gov/products/GAO-15-477

Human Rights Watch, Embattled: Retaliation against Sexual Assault Survivors in the

US Military (2015), available at https://www.hrw.org/report/2015/05/18/embattled/

retaliation-against-sexual-assault-survivors-us-military

7. RESPONSES TO JPP REQUESTS FOR INFORMATION

DoD and Services’ Responses to JPP Requests for Information 67-88 (May 6, 2015)

DoD and Services’ Responses to JPP Requests for Information 90-102 (Dec. 3, 2015)

8. LETTERS AND E-MAILS

Protect Our Defenders, Comment on Retaliation (submitted to JPP on Dec. 15, 2015)
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APPENDIX G: SOURCES CONSULTED

9. ONLINE RESOURCES

a. Government Websites

DoD Safe Helpline, available at https://safehelpline.org/

U.S. Dep’t of Army Sexual Harassment/Assault Response & Prevention, “Prevention & Training,” 

available at http://www.sexualassault.army.mil/Template-preventionAndTran.cfm?page=

prevention_overview.cfm

U.S. Dep’t of Defense, Office of the Inspector General, “DoD IG Monthly Update – October 2015,” 

available at http://www.dodig.mil/eletter/eletter_view.cfm?id=6629

b. Other Online Resources

Government Accountability Project, “GAP Praises House Approval of Military 

Whistleblower Protection Act Makeover,” available at https://www.whistleblower.org/

blog/120013-gap-praises-house-approval-military-whistleblower-protection-act-makeover

Press Release from Sen. Barbara Boxer, “Boxer, Wyden, Markey, Speier Introduce Legislation to 

Strengthen Protections for Military Whistleblowers” (Apr. 29, 2015), available at

http://www.boxer.senate.gov/press/release/boxer-wyden-markey-speier-introduce-legislation-tostrengthen-protections-for-military-whistleblowers/
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