Rights For ROTC, Reserve, & National Guard Victims of Sexual Crimes

This section applies to you if you fit one of the following descriptions:

• You are enrolled in a Reserve Officer Training Corps (ROTC)  program at a U.S. college or university.
• You are currently a member of the U.S. Navy Reserve, Army Reserve, Air Force Reserve, Coast Guard Reserve, Marine Corps Reserve, or Space Corps Reserve.
• You are enrolled in an ROTC program at one of the six senior military colleges: Norwich University, Texas A&M University, The Citadel, Virginia Military Institute, Virginia Tech, or the University of North Georgia.
• You are currently serving in a National Guard unit.

AND ONE OF THE FOLLOWING:

• You experienced sexual violence perpetrated by a service member at any point during the perpetrator’s active-duty period of service.

Your rights during the reporting process:

1. You have the right to choose to report to the military or civilian authorities. You can choose to report to either jurisdiction, regardless of where the crime occurred. However, jurisdiction is ultimately determined between the military and civilian authorities.^[1]
2. You have the right to choose to file an Unrestricted or Restricted report. A report can be filed at any time and you do not need to wait to be on Title X status to file a report.^[2]
   1. A Restricted Report does not trigger an investigation into the incident. You still have the right to access healthcare treatment and to receive services from a SARC and/or SAPR VA. A Restricted Report can be converted to an Unrestricted Report at any time. In order to file a Restricted Report, you can ONLY report to:
      1. 1. SARC/SAPR Victim Advocate
         2. Military health care provider^[3]
   2. An Unrestricted Report opens an investigation into the incident, allowing you to access healthcare treatment, and receive services from a Sexual Assault Response Coordinator (SARC) and/or Sexual Assault Prevention and Response Victim Advocate (SAPR VA). When your commander receives this report, they must immediately refer the case to the appropriate service-branch investigative agency (CID, NCID, or OSI) and cannot conduct an internal, command-based investigation. An Unrestricted Report cannot be converted to a Restricted Report. In order to file an Unrestricted Report, you can report to:
      1. 1. SARC/SAPR Victim Advocate^[4]
         2. Civilian law enforcement
         3. DoD law enforcement
         4. Your command
   3. Regardless of whether you choose to utilize Restricted or Unrestricted Reporting, your medical records will remain confidential.^[5]
   4. To learn more about reporting options and initiate a Restricted or Unrestricted report, visit the DoD Safe Helpline.
3. You have the right to limited services from a Sexual Assault Response Coordinator (SARC) or Sexual Assault Prevention and Response Victim Advocate (SAPR VA). You may request that your SARC/SAPR VA be present when law enforcement or the military prosecutor interviews you. The SARC/SAPR VA can provide appropriate non-medical referrals.^[6]
4. You have the right to a safety assessment conducted by a SARC/SAPR VA or other individual whose involvement would not trigger an Unrestricted Report.^[7]
5. You have the right to access free legal representation. You can contact your Special Victims Counsel/Victims Legal Counsel office on base to request consultation.^[8] You also have the right to obtain independent civilian counsel to represent you throughout your case. If you are interested in obtaining civilian counsel, POD has a pro bono legal services program that you can apply to here.
6. You have the right to be notified of your rights as soon as you report the incident.
   1. A SARC/SAPR VA or other office will provide you with a preliminary list of your rights and information about the reporting process:
      1. The availability of emergency medical and social services and victim advocacy services.
      2. Information about restitution or other relief and how you may request such relief.
      3. Information about public and private programs that are available to provide counseling, treatment, and other support, including available compensation through Federal, State, and local agencies.
      4. Information about obtaining arrangements to receive reasonable protection from threat, harm, or intimidation from a suspected offender.
      5. Information regarding your right to request a military and/or civilian protective order, as appropriate.
      6. Information about the military criminal justice process, the role of the victim in the process, and how the victim can obtain additional information concerning the process and the case.^[9]
7. You have the right to pursue court-martial charges against the offender through filing an Unrestricted Report.^[10]
8. You have the right to be protected from the offender by requesting a civilian restraining order, military protective order (MPO), or temporary shelter if safety is a concern and the offender is released before trial.
   1. NOTE: An MPO is NOT enforceable by civilian authorities off base and victims desiring protection off base should also seek a civilian protective order (CPO) within their local jurisdiction.^[11]
9. You have the right to be protected from retaliation (including ostracism, maltreatment, and reprisal) for filing a report of discrimination. Your chain of command is required to take measures to protect you from retaliation. If you do experience retaliation, you can report it to a SARC/SAPR VA, your SVC/VLC, or a commander outside of your chain of command.^[12]

Your rights during the military investigation:

1. You have the right to be updated on the progress of the investigation, including the arrest of the suspected offender and/or a decision not to pursue further investigation.^[13]
2. You have a right to be notified in advance of public preliminary hearings, pretrial confinement hearings, and court proceedings.^[14]
3. You have the right to confer with the prosecutor (trial counsel) regarding a decision not to prosecute, pre-trial confinement of the accused, and for an explanation of the court-martial process.^[15]
4. You have the right to be present and heard at the pretrial confinement hearing. This may be done telephonically, by video conference, by written statement, or through your SVC/VLC or private counsel.^[16]
5. You have the right to be present and/or to decline to testify at a pretrial hearing (Article 32). You may be excluded only if the hearing officer finds your testimony might be influenced by attending the hearing.^[17]
6. You have the right to have your sexual and medical history protected at pretrial hearing.^[18]
7. You have the right to request a copy of the pretrial hearing (Article 32) transcript.^[19]

Your rights during the court-martial & sentencing process:

1. You have the right to be notified of the conviction, sentencing, imprisonment, Convening Authority’s appellate review, and release of the offender.”^[20]
2. You have the right to be present at court-martial. You may be excluded only if the judge finds your testimony might be influenced by attending the court-martial. ^[21]
3. You have the right to be heard by the court at the pre-sentencing hearing, including testifying as to how the crime has affected you (any emotional, physical and financial suffering you experienced). You may deliver a statement in person or in writing. The judge must approve the content of your statement before it is presented at the hearing.^[22]
4. You have the right to have mental health records and sexual history protected from open court.^[23]
5. You have the right to be informed in a timely manner of any plea agreement, separation agreement, or non-prosecution agreement relating to the offense. There may be an exception if providing this information would jeopardize a law enforcement proceeding or violate the privacy concerns of an individual other than the accused.
6. You have the right to proceedings free from unreasonable delay.^[24]
7. You have the right to request restitution as a condition of a pretrial agreement to plead guilty to an offense, or as a condition of clemency or parole.^[25]
8. You have the right to accommodations during the court-martial process including assistance with transportation, parking, childcare, lodging, and translators/interpreters if necessary. If the court-martial is to take place in a different country than where you currently reside, transportation must be made available if you are testifying at trial.^[26]
9. You have the right to be notified of a sentence and general information regarding minimum release date, parole, clemency, and mandatory supervised release, when applicable.^[27]

Your rights following a court-martial:

1. You have the right to be informed of post-trial rights/processes.^[28]
2. You have the right to request a transcript of the trial.^[29]
3. You have the right to present a written statement to the convening authority after the sentence is announced during the court-martial. The convening authority will ultimately determine whether to impose the original recommended sentence or to reduce the sentence. The convening authority cannot overturn a finding of guilty in a sexual assault case or issue a more severe sentence than what was recommended at court-martial.^[30] 
4. You have the right to be notified of convening authority’s actions, including any sentence reduction.^[31]
5. You have the right to be notified of the offender’s confinement location, including transfer to another facility, parole, escape, release from confinement, or death while in confinement.^[32]
6. You have the right to be notified of release hearings and offender release.^[33]
7. You have the right to be notified of appellate actions, including advance notification of the date and time of any appellate courtroom hearings, and the final decision of any appellate court or judge advocate review.^[34]
8. You have the right to be present and heard at release hearings.^[35]
9. You have the right to have property held as evidence returned to you as expeditiously as possible.^[36]

Your rights at the VA (for victims of MST)

1. You have the right to participate in a military sexual trauma (MST) program if you were discharged or released from active duty under conditions other than dishonorable.^[37]

Footnotes & Sources

^[1] DOD MOU 938(c)(2) (1984);  R.C.M. 201(d)(1); R.C.M. 201(d)(2)

^[2] DOD Instruction 6495.02

^[3] Department of Defense Instruction 6495.02

^[4] Department of Defense Instruction 6495.02

^[5] Department of Defense Health Information Privacy Regulation 6025.18-R

^[6] Department of Defense Instruction 6495.02 Enclosure 2

^[7] Department of Defense Instruction 6495.02

^[8] Department of Defense Instruction 6495.02

^[9] DD Form 2701; DOD Instruction 1030.2

^[10] DOD Instruction 1030.2

^[11] DD Form 2701

^[12] 5 U.S.C. ch. 23 § 2301

^[13] DOD Instruction 1030.2

^[14] DOD Victim Bill of Rights

^[15] DOD Victim Bill of Rights

^[16] DOD Victim Bill of Rights; R.C.M. 305(i)(2)(A)(iv)

^[17] DOD Victim Bill of Rights; DD Form 2702

^[18] M.R.E. 412

^[19] R.C.M. 405(k)(5)

^[20] DOD Victim Bill of Rights

^[21] DOD Victim Bill of Rights; DD Form 2702

^[22] DD Form 2702; R.C.M. 1001(c)

^[23] M.R.E. 412; M.R.E. 513

^[24] DOD Victim Bill of Rights

^[25] DOD Victim Bill of Rights

^[26] DOD Instruction 1030.2

^[27] DOD Instruction 1030.2

^[28] DOD Instruction 1030.2

^[29] DD Form 2703

^[30] DOD Victim Bill of Rights; 10 U.S.C. § § 859-876; R.C.M 1106A

^[31] DD Form 2703

^[32] DD Form 2703

^[33] DD Form 2702

^[34] DD Form 2703

^[35] DOD Victim Bill of Rights

^[36] DD Form 2703

^[37] VHA Directive 1115