What Legal Rights and Options do Military Sexual Assault Survivors Have?

 By: Christine Dunn

Members of the military make incredible sacrifices every day in the service of our country. They place their lives on the line in combat, endure lengthy deployments away from their families, and engage in physically grueling labor. Service members expect those hardships when they enlist. What they don’t expect is the heightened risk of sexual assault for those in the military.

Sadly, sexual assault in the military is a widespread problem. According to the Department of Defense Fiscal Year 2024 report, there were 8,195 reported sexual assaults involving U.S. military service members in 2024 alone. Given that sexual assault often goes unreported, especially in the military, the numbers are likely significantly higher.

What happens when a military service member is sexually assaulted? The military has its own unique process for reporting, investigating, and prosecuting crimes. So, what rights and remedies do military sexual assault survivors have?

When reporting a sexual assault perpetrated by someone in the military, the victim has the option of submitting a restricted report or an unrestricted report. A restricted report allows the victim to confidentially report the crime without triggering an investigation. The chain of command will not receive identifying information about the victim or the perpetrator.

In the alternative, a military survivor can file an unrestricted report, in which the allegations are not kept confidential. The unrestricted report will trigger an investigation, and the chain of command will be notified. In either case, filing a report allows the military victim to receive legal advice, medical and mental healthcare, and victim advocacy services.

If a military sexual assault victim makes an unrestricted report, the matter will then be investigated by the appropriate criminal investigative agency. For example, if the perpetrator is in the Army, the Army’s Criminal Investigation Division (“CID”) will likely be the investigating agency. Once the investigation has been concluded, the case will be referred to a decision maker to determine whether charges should proceed.

For most crimes in the military, the commander makes that determination. However, as of 2023, sexual assault allegations must be referred to an independent decision maker in the Office of Special Trial Counsel. A special trial counsel will serve as the independent military prosecutor deciding, in place of military commanders, whether to prosecute allegations of sexual assault.

If the special trial counsel determines that there is a reasonable suspicion that the perpetrator committed an offense against the Uniform Code of Military Justice, charges will commence. In the military, “preferral of charges” is when the prosecutor officially accuses a service member of an offense by signing a charge sheet, thereby initiating the court-martial process. The court-martial process is similar to a trial in the civilian context, concluding in either a guilty plea or a trial.

As in the civilian criminal process, a military crime victim doesn’t have party status; however, they do have important and enumerated rights. Department of Defense (DoD) Directive 1030.1 and DoD Instruction 1030.2 provide guidance for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.

The DoD Directive and Instruction, which includes a DoD Victims’ Bill of Rights and resembles the Federal Crime Victims Act, ensures that victims of military-related crime are accorded certain rights, including the right to:

(1) be reasonably protected from the accused;
(2) be provided with reasonable notice of key hearings and events;
(3) be present at key public hearings;
(4) be reasonably heard at key events and proceedings;
(5) confer with the prosecutor;
(6) proceedings free of unreasonable delay; and
(7) be treated with fairness and respect for their dignity and privacy.

In addition, military sexual assault survivors are also entitled to be provided with a Special Victims’ Counsel (SVC). An SVC is a lawyer trained to provide legal counsel to victims of sexual assault as they navigate the investigation and prosecution of their perpetrator through the military criminal justice system. SVCs can aid sexual assault survivors in a number of ways, including accompanying and advising victims during interviews, examinations, and hearings; obtaining medical services for the victim; and helping the victim prepare a victim impact statement.

Separate and apart from participating in the perpetrator’s court martial process, a military sexual assault victim also has the option of pursuing a civil case – either against the individual perpetrator of the crime or the larger institution that failed to keep the victim reasonably safe.

In the civilian world, such cases are fairly common. For example, if a student is sexually assaulted by a teacher, the student might sue the school for negligence in hiring and supervising that teacher.

Unfortunately, it’s not as easy for military service members to bring negligence cases against the institutions that harmed them.

The Feres doctrine, stemming from a 1950 Supreme Court opinion, bars active-duty military members from bringing claims against the government for anything “incident to military service.”

Over the years, that has been used as an almost complete bar to prevent service members from bringing negligence claims against the government. Most shockingly, Feres has been used to keep service members from bringing sexual assault claims.

Claims against individual military perpetrators can be equally challenging because the military can step in and take the place of the individual perpetrator.

While it is difficult for service members to bring civil claims against the military for sexual assault, in the right circumstances, it is still possible and can be an important tool for military sexual assault survivors to get justice.

Christine Dunn is Co-Managing Partner of Sanford Heisler Sharp McKnight’s Washington, D.C. office and Co-Chair of the firm’s Sexual Violence, Title IX, and Victims’ Rights Practice Group. A nationally recognized plaintiffs’ attorney, she represents survivors of sexual assault, discrimination, and whistleblower retaliation, with her work featured in The New York Times, The Washington Post, and People magazine. She also serves on the Board of Directors of the National Crime Victim Law Institute.

For more information on Christine, please visit: https://sanfordheisler.com/team/christine-dunn/