Home Text messaging New Ideas to Prevent Sexual Assault in the Military | Procedure

New Ideas to Prevent Sexual Assault in the Military | Procedure

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On January 23, 2021, Secretary of Defense Lloyd Austin asked subordinate commanders to come up with “new” and “creative” approaches to sexual assault prevention and response. Nearly a decade earlier, in 2012, the 6th Marine Corps Recruiting District (MCD) had already implemented an innovative and creative approach to sexual assault prevention: Operation Restore Vigilance (RV). The 6th MCD commander was inspired by the eradication of disease in the Panama Canal Zone in the early 1900s and applied a similar “systems approach” to eradicate sexual assault. The 6th MCD’s approach, while unlikely to be implementable force-wide, offers several lessons for commanders seeking to achieve the Secretary of Defense’s intent.

In large part, the effectiveness of RV was based on how well it synergized many proven sexual assault prevention strategies. The new and creative aspect of VR was the second line of effort – internal control measures. These aimed to prevent or eliminate precursor conditions strongly correlated to recruiter sexual misconduct, including victim isolation and preparation. Some prohibitions included banning private recruiter/candidate meetings and personal text messaging – in other words, the ordinance criminalized certain behaviors in an effort to deprive recruiters of the ability to set conditions for sexual misconduct . This approach has proven effective. Before enacting internal control measures, the 6th MCD recorded an average of ten confirmed cases of sexual misconduct between recruiters and candidates per year. In the year following enactment, there were no substantiated incidents. However, nine recruiters were relieved for violating RV bans on precursor driving.

Restore Vigilance has produced results. Specifically targeting isolation using the “two person rule”, RV prohibited one-on-one interactions between recruiters and applicants. As a witness was always present, this prohibition deprived recruiters of the possibility of isolating potential victims. Second, the 6th MCD recognized that “[t]Exting is an unsupervised, informal and dangerous mode of communication that can easily be misunderstood and manipulated by predators. Restoring vigilance required that all recruiter-to-candidate communications be done on official government devices. As government schemes are subject to supervision, recruiters have been deprived of the first means of preparing future victims. After training and education on these prohibitions, policy violators were held administratively or judicially accountable. The results validated the approach. The commander relieved nine Marines for violation of orders (gateway crimes) and the command stamped out recruiter/candidate sexual misconduct – the ultimate goal.

Beyond the recruiting environment

Of course, commanders do not have the absolute power to regulate otherwise non-criminal conduct by directive. To be lawful, an order must relate to military duty. This nexus requirement means that an order must be reasonably necessary to accomplish a military mission; necessary to safeguard or promote the morale, discipline and usefulness of members of a unit; or ensure the maintenance of good order in the armed forces. An ordinance may regulate private activity if it does not impose an unjust limitation on a personal right, is not overbroad, and is not arbitrary and capricious.1

The unique recruitment mission gives the commander more leeway to impose certain restrictions that would be too broad or unfair in another context (or command). The narrowly tailored prohibitions in VR (two-person rule and prohibition of private devices) are essential to protect candidates, preserve good order and discipline, and ensure mission accomplishment. Similarly, while a ban on private social interactions outside the workplace would generally be too broad, the recruiting mission and special status of the parties (recruiter/candidate) is sufficient to both narrowly tailor the ban and provide the military bond required.

Nonetheless, Restore Vigilance’s internal control measures offer possible approaches to addressing sexual assault that, with the right tools, could be applied across the force. A potentially effective approach would be to criminalize identifiable precursor behavior under Article 134 of the Uniform Code of Military Justice. If a Service Member takes any action with the specific intent of satisfying sexual desire and such actions are: 1) unreasonable and 2) prejudicial to good order and discipline, discrediting the Service, or both, an appropriate amount of criminal liability should be attached.

An inappropriate string of text or aggressive behavior used to isolate victims could be criminalized as sexual assault. If these types of behavior are prohibited by the penal code rather than by order of a commander, overbreadth, military nexus, and special status considerations related to the legality of military orders become moot. Similarly, providing alcohol to minors, lying to officials, violating firehouse policies, consuming alcohol to minors, repeated unwelcome advances – in fact, any behavior undertaken with the specific intent to obtain sexual gratification – could expose perpetrators to an appropriate level of criminal risk if such actions fall below community standards of reasonableness.

Restore Vigilance’s internal control measures are not a panacea. Their application in a broader context could be regulatory overbreadth, attempting to regulate otherwise non-criminal and constitutionally protected behavior. However, the elements of VR provide proof of concept for an effective, novel, and creative approach to combating military sexual assault across the force.