https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN35839-ARMY_DIR_2022-10-000-WEB-1.pdf
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Army Directive 2022-10 (Safe-to-report for Victims of Sexual Assault)
1. References.
a. Public Law 116-283 (William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021), Section 539A (Safe-to-Report)
b. Department of Defense (DoD) Instruction 6495.02, (Sexual Assault Prevention
and Response Program Procedures), Volume 1, 28 March 2013, incorporating
Change 6, effective 10 November 2021
c. Under Secretary of Defense (Personnel and Readiness) memorandum
(Safe-to-report Policy for Service Member Victims of Sexual Assault), 25 October 2021
d. Under Secretary of Defense memorandum (Fiscal Year 2022 Data Call on the
Safe-to-report Policy), 18 November 2021
e. Army Regulation (AR) 27–10 (Military Justice), 20 November 2020
f. AR 600–8–4 (Line of Duty Policy, Procedures, and Investigations),
12 November 2020
g. Army Regulation 600–20 (Army Command Policy), 24 July 2020
2. Purpose. To prescribe policy and procedures for the identification and treatment of
alleged minor and non-minor collateral misconduct by servicemember victims of sexual
assault.
3. Applicability. The provisions of this directive apply to the Regular Army, Army
National Guard/Army National Guard of the United States, and U.S. Army Reserve.
4. Background. As required by section 539A of the William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021 and DoD’s safe-to-report
policy, this directive requires commanders to assess collateral misconduct against
aggravating and mitigating circumstances in sexual assault cases. Victims will not be
subject to discipline for minor collateral misconduct pursuant to this policy.
S E C R E T A R Y O F T H E A R M Y
W A S H I N G T O N
SUBJECT: Army Directive 2022-10 (Safe-to-report for Victims of Sexual Assault)
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5. Definitions. The following definitions apply for the purposes of the policy:
a. Collateral misconduct is any victim misconduct that might be in time, place, or
circumstance associated with the victim’s sexual assault incident.
b. Sexual assault is any penetrative and non-penetrative reported violations of the
applicable version of Article 120, Uniform Code of Military Justice (UCMJ); reported
violations of Article 125, UCMJ, of a victim age 16 or older occurring prior to
1 January 2019; and any reported attempts and conspiracies to commit any of these
offenses.
c. Discipline (including discipline under cadet regulations at the United States
Military Academy) includes an officially documented command action that has been
initiated against the victim in response to alleged collateral misconduct, including: letters
of reprimand or written records of individual counseling in official personnel files,
imposition of nonjudicial punishment, preferral of charges, initiation of involuntary
administrative separation proceedings, or administrative demotion.
6. Policy.
a. This policy applies to all servicemembers who are victims of sexual assault,
including cadets at the United States Military Academy, regardless of who receives the
victim’s report of sexual assault or whether the investigation and/or prosecution is
handled by military or civilian authorities.
b. Commanders in the grade of O-6 and above who possess special court-martial
convening authority must assess alleged collateral misconduct against aggravating and
mitigating circumstances. Such commanders retain discretion to make the final
determination of whether the alleged collateral misconduct is minor or non-minor based
on their analysis of aggravating and mitigating circumstances. Commanders will consult
with their servicing Staff Judge Advocate in reaching these determinations.
(1) Aggravating Circumstances. The existence of aggravating circumstances
does not automatically result in a determination that the alleged collateral misconduct is
non-minor. Aggravating circumstances include, but are not limited to, whether the
alleged collateral misconduct intentionally or unintentionally:
(a) resulted or imminently threatened to result in failure of a specified military
mission or objective
SUBJECT: Army Directive 2022-10 (Safe-to-report for Victims of Sexual Assault)
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(b) threatened the health and safety of any person, not including acts of
self-harm or acts of self-defense against the subject(s) of an investigation of sexual
assault
(c) resulted in significant damage to government property, or to the personal
property of others, except when such damage was the collateral result of an assault
and/or resulted from an act of self-defense
(2) Mitigating Circumstances. Mitigating circumstances include, but are not
limited to:
(a) the victim’s age and military experience level
(b) whether the subject is in a position of authority over the victim or a higher
grade than the victim
(c) whether the subject engaged in actions to stalk, harass, haze, coerce, and/or
otherwise influence the victim to engage in sexual behavior
(d) whether the alleged collateral misconduct was known to command prior to
the report of sexual assault, and if not known, the likelihood that the alleged collateral
misconduct would have otherwise been discovered, but for the victim disclosing or
reporting the sexual assault
(e) the victim engaging in misconduct after the sexual assault, which may be
related to symptoms of trauma (for example, if the victim engaged in underage drinking
as a coping mechanism to alleviate sexual assault trauma symptoms)
c. Determination of Non-Minor Collateral Misconduct. If the commander determines
a victim’s collateral misconduct is non-minor, the commander retains discretion on
whether to discipline and when to discipline.
(1) Commanders have discretion to defer action on alleged non-minor collateral
misconduct until final disposition of the sexual assault case. Commanders may take into
account the trauma to the victim and respond appropriately to encourage reporting of
sexual assault and continued victim cooperation while balancing the right to speedy trial
and statute of limitations concerns.
(2) Commanders should consult with Judge Advocates in understanding the
impact of disciplinary actions on ongoing prosecutions.
SUBJECT: Army Directive 2022-10 (Safe-to-report for Victims of Sexual Assault)
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d. Determination of Minor Collateral Misconduct. If the commander determines a
victim’s collateral misconduct is minor, safe-to-report protections are triggered. The
victim will not be subject to discipline for minor collateral misconduct.
(1) Examples of collateral misconduct that should generally be considered minor
include, but are not limited to:
(a) The victim was drinking underage at the time of the assault.
(b) The victim was engaged in an unprofessional relationship with the subject at
the time of the sexual assault. An “unprofessional relationship” is a relationship that
violated law, regulation, or policy in place at the time of the sexual assault.
(c) The victim was in violation of lawful orders establishing curfews, off-limit
locations, school standards, barracks/dormitory/berthing policies, or similar matters at
the time of the reported sexual assault.
(2) Safe-to-report protections do not preclude the commander from fulfilling
certain administrative requirements, for example, referral to substance abuse screening
if the minor collateral misconduct involves any kind of substance abuse, referral to
behavioral health or medical providers for a fitness for duty determination, or temporary
suspension of access to critical positions (such as positions in the Personnel Reliability
Program).
e. Reporting. The Director, Army Resilience Directorate is responsible for
responding to DoD data calls regarding this policy, including data calls required by
reference 1d. Data collection and reporting is the responsibility of the local Lead Sexual
Assault Response Coordinator with support from the local Staff Judge Advocate.
7. Proponent. Under the policy oversight of the Assistant Secretary of the Army
(Manpower and Reserve Affairs), The Judge Advocate General and the Deputy Chief of
Staff, G-1 will incorporate the provisions of this directive into applicable regulations
within 2 years of the date of this directive.
8. Duration. This directive is rescinded on publication of the revised regulations.
DISTRIBUTION: (see next page)
SUBJECT: Army Directive 2022-10 (Safe-to-report for Victims of Sexual Assault)
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DISTRIBUTION:
Principal Officials of Headquarters, Department of the Army
Commander
U.S. Army Forces Command
U.S. Army Training and Doctrine Command
U.S. Army Materiel Command
U.S. Army Futures Command
U.S. Army Pacific
U.S. Army Europe and Africa
U.S. Army Central
U.S. Army North
U.S. Army South
U.S. Army Special Operations Command
Military Surface Deployment and Distribution Command
U.S. Army Space and Missile Defense Command/Army Strategic Command
U.S. Army Cyber Command
U.S. Army Medical Command
U.S. Army Intelligence and Security Command
U.S. Army Criminal Investigation Command
U.S. Army Corps of Engineers
U.S. Army Military District of Washington
U.S. Army Test and Evaluation Command
U.S. Army Human Resources Command
Superintendent, U.S. Military Academy
Director, U.S. Army Acquisition Support Center
Superintendent, Arlington National Cemetery
Commandant, U.S. Army War College
Director, U.S. Army Civilian Human Resources Agency
CF:
Principal Cyber Advisor
Director of Business Transformation
Commander, Eighth Army