A Sexual Assault Reporting Process Foreign Service Members Deserve: If Not Now, When? Attn: @JohnKerry #16days

Posted: 2:13 am ET
Updated: 11:47 am PT
[twitter-follow screen_name=’Diplopundit’ ]

For victims/survivors of sexual assault, please see Sexual Assault in the Foreign Service — What To Do? Consider below as a follow-up post to The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief.

The following is provided for general information that is intended, but not guaranteed, to be correct and up-to-date. Please do not consider the following legal advice as we are not lawyers; read the full necessary disclaimer below.

The Rape, Abuse & Incest National Network (RAINN) has the following sexual violence statistics:

On average, there are 288,820 victims (age 12 or older) of rape and sexual assault each year in the United States
Ages 12-34 are the highest risk years for rape and sexual assault
90% of adult rape victims are female
94% of women who are raped experience post-traumatic stress disorder (PTSD) symptoms during the two weeks following the rape.
30% of women report PTSD symptoms 9 months after the rape.
33% of women who are raped contemplate suicide.
The majority of perpetrators are someone known to the victim. Approximately 3 out of 4 of sexual assaults are committed by someone known to the victim

Rape notification rates differ depending on whether the victim know the perpetrator — those who knew a perpetrator were often less likely to report the crime, according to RAINN. A report (PDF) published by the National Sexual Violence Resource Center says that many survivors experience great difficulty in disclosing a sexual assault, especially when the perpetrator is known to the victim. The study is focused on rural America where “the propensity to not report may be reinforced by informal social codes that dictate privacy and maintaining family reputation. Sexual assaults in rural areas are mostly hidden crimes, hidden both intentionally and unintentionally by characteristics of a close-knit culture or an isolated lifestyle.” Rural communities like small towns as places where “everybody knows everybody.” Sounds familiar?

A victim will have little anonymity. It means she, or a friend or family member is likely to be acquainted with or related to the perpetrator and that she may reencounter the perpetrator, even on a regular basis. Furthermore, “the closer the relationship between victim and assailant, the less likely the woman is to report the crime” (Hunter, Burns-Smith, Walsh, 1996). Studies have quite consistently pointed to the importance of the victim-offender relationship in affecting the propensity to report (Pollard, 1995; Ruback, 1993, Ruback & Ménard, 2001). In rural areas, law enforcement is likely to be part of the social network (Sims, 1988; Weisheit, Wells & Falcone, 1994; Weisheit, Wells & Falcome, 1995). This compounds the problem of reporting non-stranger sexual assaults.

We need to point out that in the Foreign Service, particularly overseas, Diplomatic Security law enforcement –as in rural communities and small towns — is part of the social network.

We should also note that a 2002 study by Lisak-Miller indicates (PDF) that a majority of the undetected rapists were repeat rapists. The repeat rapists averaged 5.8 rapes each.

According to the Callisto Project, which provides survivors with a confidential and secure way to create a time-stamped record of an assault in American campuses less than 10% of survivors will ever report their assault. Survivors wait an average of 11 months to report their assault to authorities and up to 90% of assaults are committed by repeat perpetrators. Callisto’s CEO Jess Ladd told us that someday she would like to make available their product within other institutions (including companies and agencies) and to have a free version that anyone can use to store what happened. But Callisto is not there yet.

Foreign Service Victims’ Concerns

Among the concerns we’ve heard so far are: 1) lack of clear reporting process, 2) confidentiality, 3) sexual assault response training, 4) potential conflict/undue pressure on investigators/managers who may be friends, colleague, or subordinates of perpetrators, and 5) lack of sexual assault data.

As we’re written here previously DOD and Peace Corps provide restricted and unrestricted reporting for victims, but that does not appear to be the case in the Foreign Service. The State Department has over 275 posts in about 180 countries. The agency’s Diplomatic Security has Regional Security Offices in most locations but not all. The State Department has previously told this blog that Diplomatic Security’s Office of Special Investigations “receives and catalogues allegations and complaints. Allegations are neither categorized by location nor by alleged offense.” Which begs the question, how will the State Department know if it has sexual predators living among its various communities particularly overseas if it does not track these types of offenses?

Due to the lack of clear reporting process — except “report to RSO” or “contact OSI,” victims (as well as this blog) have no way to independently assess what reporting entails. We don’t know what kind of confidentiality is afforded the victims. Among other concerns and questions:

When we asked an FS assault victim if there is any good option for reporting sexual assault, we were told bluntly, “There is no good option. That’s what the predator knows.”

When a victim reports to RSO overseas, we know that the RSO is supposed to contact State/OSI, but who else has access to that information? Embassy/post leadership? Which officials in the embassy hierarchy? Will the local Health Unit be informed? The CLO? State/MED? DS Command Center? And will reporting victims be informed in advanced who their information will be shared with and the specific reason for sharing their information?

Do DS/OSI investigators travel to the location of the assault to investigate? Time and evidence collection are of the essence in sexual assault reporting. If yes, how quickly? Is there a ~~have~~ rapid response team? What should the victim do while waiting for the arrival of DS/OSI investigators? Not shower? Not go to work?

In countries where sexual assault victims are jailed for “promiscuity”, what is the State Department’s policy and recommendation to someone assaulted in a place where requesting a rape kit means going to jail? Would the Department work with local authorities to actually protect the victim from prosecution while DS investigates or would they just allow an already traumatized victim to get PNG’d and force them to pack up and leave?

How will the victim’s report be transmitted to DS/OSI? Via unclassified email? Via fax? Via phone? In the case of emails, what restricts that information from being forwarded with a click of a mouse, or the record being compromised intentionally or unintentionally?

How are victims’ reporting records protected? What are the consequences for an employee/s with access to the victim’s report who shares it with an unauthorized entity or individual? What if it is shared with a colleague, or a friends, or a family member?

What kind of training do RSOs get to enable them to assist sexual assault victims overseas? “Does every single RSO in the world know a designated medical facility to process a rape kit?” Or for that matter, do Health Units at overseas posts even have this information available?

Victims who report to RSO or DS/OSI would like to know if the officers receiving their sexual assault reports represent the victims’ interests or State Department interests?

What support is available to victims? What can victims expect after they report their assaults? What consequences will their reporting have on their medical clearance and assignments? What kind of work accommodation will be extended to them, if needed? Who ~~will be their effective~~ has the responsibility to advocate for them if they need to file workers’ comp from the Department of Labor?

How are perpetrators — who are not strangers — handled by the State Department? This is not a hypothetical question. An OIG investigation indicates that one security officer’s alleged sexual misconduct spanned 10 years and 7 posts. In that case, the Department never attempted to remove the RSO from Department work environments where the RSO could potentially harm other employees. DS agents investigating the 2011 allegations reported to DS management, in October 2011, that they had gathered “overwhelming evidence” of the RSO’s culpability. These agents encountered resistance from senior Department and DS managers as they continued to investigate the RSO’s suspected misconduct in 2011. The OIG found that the managers in question had personal relationships with the RSO. Folks who work at the State Department should ask questions like who are these senior Department and DS managers who allowed this to happen for 10 years and 7 posts? Do they have other friends that they have similarly protected? What happened to the victims at 7 posts? What support were available to them? What responsibility does the State Department have for not removing that employee despite overwhelming evidence of culpability?

FOIA Diplomatic Security’s sexual assault cables?

As readers here know, there is no official guidance in the FAM on reporting sexual assault in the Foreign Service (see The State Dept’s Sexual Assault Reporting Procedure Appears to Be a Black Hole of Grief). We’ve requested the unclassified cables that were released by DS/OSI in 2015 and earlier this year on sexual assault reporting (15 State 71370; 15 State 79760; and 16 STATE 56478 all reportedly available at DS/OSI intranet). Since the information is unclassified and it could be useful information, we thought we could save time and money by requesting these through regular channels without having to FOIA them. We appreciate the efforts of those who were trying to obtain these for us through regular channels; we understand some folks worked through the weekend to attend to this requests. Thanks, folks! Late Monday, we got word from a State Department spokesperson:

“Our thanks for your patience while the Department reviewed the practice of releasing State Department internal cables to members of the public or media. At this stage, a decision has been made that we are unable to release cables in this manner.”

Unbelievable! But it is what it is. We need, therefore, to FOIA these unclassified cables. Given State’s FOIA processing record, we don’t expect to see these cables until 1-2-3-4 years down the road. We might be dead of heartbreak by then.

State/OIG Hotline and Office of Special Counsel

State/OIG has reiterated to us that that their office takes allegations of rape and sexual harassment very seriously and repeated the response they provided us back in August here. Note that we have already been told that cases like this should not be reported to the OIG Hotline. Read more here: Another Note About the Burn Bag–There’s No Easy Way of Doing This, Is There?. State/OIG told us that Department employees who believe they have been subjected to whistleblower retaliation may contact OIG or the Office of Special Counsel (OSC). OIG can help the individual in understanding their rights and may investigate the retaliation, as well as alert the Department to any illegal reprisal. State/OIG also said: “By no means do we want to discourage anyone from contacting our Hotline, but such a serious crime as a rape needs to be dealt with immediately and that’s why we recommend a call to local law enforcement.”

Assault in a Domestic Location: Local Police, FBI, DS/OSI

We asked a State/DS contact on how an FSO (or employee) might report sexual assault perpetrated by another FSO in a domestic location? The following is provided by a source on background for information only as he/she is not authorized to speak on this issue:

Reporting a sexual assault to law enforcement in a domestic location, it would depend on where the assault took place. If it was in a federal facility, the owning agency would have primary jurisdiction; but more than likely the FBI would assert primacy and take over the investigation. If the assault took place anywhere else, the local police would have the primary jurisdiction.

As as for reporting the incident to DoS for HR purposes, I believe it then falls on the victim (or someone else if they were to learn of it) to report it to OCR as they would then proceed with any adverse action recommendation to HR. This part I’m not as sure about because it seems like it leaves a hole in reporting in a domestic incident. However, I do seem to recall a portion of the FAM (I couldn’t tell you the section but maybe in the employee responsibilities portion) that requires a person subject to law enforcement action to report it to his supervisor, though again who is going to report to their boss that he/she is the subject of a sexual assault investigation?

Note that 12 FAM 272 requires employees to report adverse financial situation and certain arrests to DS/SI/PSS. The reporting requirement in this section is not exclusive or exhaustive, and only cites wage garnishments, credit judgments, repossessions, tax liens, bankruptcies, and/or intentions to file for bankruptcy and arrests for driving violations. If anyone is aware of another FAM citation related to reporting requirements in the regs for ongoing criminal investigation, please let us know.

If the assault is done by a federal employee against another federal employee, we also want to know if that would make it an FBI case? Who should the victim initially contact? We also noted the what if — if the attack occurs in a USG-conneced location. This is the response, also on background for information only because the source is not authorized to speak on this topic:

Where DoS is direct billed for the housing like Oakwood or some furnished apartment? If so, you’d have mixed jurisdiction between federal authorities and local police. Very likely, it would be local police who would take the lead in this case. Anyway, the victim should call the local police right away to preserve evidence and take statements as soon after the incident as they would have the most experience with such incidents. After reporting to the local police, I would recommend that that the victim contact OSI to report it to DoS. OSI will want to confer with the local police as the investigation progresses.

Assault Overseas: RSO, FBI/Legat, DS/OSI

1 FAM 260 indicates that the Office of Special Investigations (DS/DO/OSI) has the primary responsibility for administrative and operational case control of non-routine investigations that do not fall within the purview of other DS investigative offices. DS/DO/OSI is specifically charged with conducting and/or coordinating criminal investigations into violations of U.S. extraterritorial laws involving executive branch U.S. Government employees, contractors, and dependents falling under COM authority. In this capacity, DS/DO/OSI conducts investigations committed by and against executive branch U.S. Government employees, contractors, and dependents, as well as crimes occurring within U.S. diplomatic installations and housing abroad.

The State Department told us that when an attack happens overseas, the report should be made to the Regional Security Office who will contact Diplomatic Security’s Office of Special Investigation (DS/OSI). The state.gov directory lists Michael Ranger as the Office Director at 571-345-0429. We’ve heard about not reporting to RSO and reporting to FBI at post or any other law enforcement professional, as an alternative. We have not heard from anyone who has actually done this and we don’t know how this would work exactly in an embassy setting given official jurisdictions.

There are 64 FBI legal attaché offices—commonly known as legats—and more than a dozen smaller sub-offices in key cities around the globe, providing coverage for more than 200 countries, territories, and islands. Typical duties of a legal attaché include coordinating requests for FBI or host country assistance overseas; conducting investigations in coordination with the host government; sharing investigative leads and information; briefing embassy counterparts from other agencies, including law enforcement agencies, as appropriate, and ambassadors; managing country clearances; providing situation reports concerning cultural protocol; assessing political and security climates; and coordinating victim and humanitarian assistance.

Would the FBI take an FS employee’s sexual assault report? Or would the FBI passed the report to RSO given the later’s primary responsibility? Given that USDOJ has jurisdiction to prosecute crimes that occur in the extraterritorial jurisdiction of the US, does the FBI/Legat offices play any role in investigating sexual assaults that occur at overseas FS posts? We don’t know. We do know that the FBI serves under chief of mission authority.

We should add here that DS/OSI did investigate the case of a DCM’s husband who abused his household staff and was recently charged in the U.S. District Court. Court records indicate that OSI investigators were deployed the next working day after State/OIG made the report to DS. However, this case was investigated by OSI back in February 2013 but the affidavit and arrest warrant were not filed in court until May 2016. There was a lengthy gap between the time when the investigation concluded/with DNA evidence in 2013 and the time when the defendant was charged in 2016. We’ve asked DOJ about this gap, but they declined to comment because sentencing won’t happen until early January 2017. See Anonymous Letter Outs Sexual Abuse of Household Staff, Former DCM’s Husband Pleads Guilty.

To be clear, we are not discouraging reporting to the RSO — it seems to be the only option available when one is overseas — individuals must make their own choices, but since we know victims worry about protecting their privacy and the confidentiality of their reporting, this information is provided for consideration. FBI/legat reporting is a potential option, we just don’t know what that entails. If there is a Legat willing to talk about this, let us know.

Congressional Assistance

California Representative Jackie Spieir has a hotline and has worked on military rape and sexual assault. Her office can be reached at 202-225-3531 or through https://speier.house.gov/contact/website-problem. If you call, ask to speak with the legislative director regarding a sexual assault issue in the federal government.

Alternatively, you may call and ask for the email address of the legislative director, and the people answering the phone will provide the email address (office’s standard policy). Jackie’s office said that they will keep your identity anonymous unless you explicitly give the congressional office permission to make inquiries on your behalf.

Special Maritime & Territorial Jurisdiction (SMTJ)

In the case of a former DCM’s husband who was charged for the abuse of his household staff (See Anonymous Letter Outs Sexual Abuse of Household Staff, Former DCM’s Husband Pleads Guilty), the court affidavit submitted by the DS agent cited SMTJ for the offense: Title 18, United States Code, Section 7(9)(B), provides that with respect to offenses committed by or against a national of the United States, the “Special Maritime and Territorial Jurisdiction of the United States includes residences in foreign States and the land appurtenant or ancillary thereto, inespective of ownership. used for purposes of United States diplomatic, consular, military, or other United States Govemment missions or entities in foreign States, or used by United States personnel assigned to those missions or entities.” … Note that the prosecution was also done by USDOJ’s Criminal Division’s Human Rights and Special Prosecutions Section but the investigation was originated by RSO-DS/OSI.

Below via CRS is worth a read, link to the CRS report dated October 2016 is provided:

Although the concept of the special maritime and territorial jurisdiction of the United States once embraced little more than places over which the United States enjoyed state-like legislative jurisdiction, U.S. navigable territorial waters, and vessels of the United States, its application has been statutorily expanded. It now supplies an explicit basis for the extraterritorial application of various federal criminal laws relating to:

– air travel (special aircraft jurisdiction of the United States)

— customs matters (customs waters of the U.S.);78

— U.S. spacecraft in flight;79

— evasive, stateless submersible vessels on the high seas;80

— overseas federal facilities and overseas residences of federal employees;81
With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act—(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities,” 18 U.S.C. §7(9)

— members of U.S. armed forces overseas and those accompanying them;82
“(a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States—(1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.

— human trafficking and sex offenses abroad by federal employees, U.S. military personnel, or those accompanying them.

Uniform Code of Military Justice (UCMJ)

Via uscmj: The UCMJ applies to all members of the Uniformed services of the United States: the Air Force, Army, Coast Guard, Marine Corps, Navy, National Oceanic and Atmospheric Administration Commissioned Corps, and Public Health Service Commissioned Corps. The Coast Guard is administered under Title 14 of the United States Code when not operating as part of the U.S. Navy. Some members of the reserved components are also subject to UCMJ under certain conditions. Retired members of the uniformed services who are entitled to retirement pay are also subject to the UCMJ, as are retired reservists who are receiving hospital care in the VA system. Read more here. Also read Can You Be Subject To The UCMJ After Your Discharge?

If the perpetrator is an active member of the armed services, in the reserved, a retired member of the military, or a former military who had been discharged, it might be helpful for victims to consult a lawyer familiar with UCMJ.

What about AFSA?

AFSA is the exclusive bargaining agent for the Foreign Service employees of the Department of State, USAID, FAS, FCS, APHIS, and BBG. In this labor-management relations capacity, AFSA negotiates with the management of the principal foreign affairs agencies on personnel policies and practices affecting members’ working conditions. Since the election of the current Governing Board, this blog has requested Foreign Service-related information on more than one occasion from the elected President Barbara Stephenson, and the elected State VP Angie Bryan. Not once has our inquiries ever been acknowledged or responded to. We imagine that these elected officials must have a not-so secret communication policy of not reading/responding to emails from this blog. We’ve also asked AFSA over on Twitter if they could please direct us to AFSA’s page for sexual harassment, or sexual assault in the Foreign Service but only got radio silence.

A search on afsa.org does not reveal any information on sexual assault/sexual harassment but does include 3 FAM 4100 regarding employee responsibility and conduct. The organization provides a list of attorneys who have successfully represented Foreign Service employees as a courtesy. Its Jan/Feb 2016 Foreign Service Journal includes a spread on mental health services. That’s the extent of their online resources as far as we are aware. If AFSA has a reporting mechanism, it’s a secret. If you do find it, make sure you are aware what level of confidentiality is extended to the victims and specifically who receives/and who has access to the victim’s information.

We have terminated our AFSA membership a while back but if you are a dues-paying member of AFSA, you might want to contact AFSA President Barbara Stephenson, whose election, according to her online bio “broke records for voter participation” in 2015. Contact her at stephenson@afsa.org. You may also contact AFSA VP Angie Bryan at BryanA@state.gov, a senior FSO who was also elected in 2015. Both can be reached on the main phone line at (202) 338-4045. Ask them what AFSA is doing about an issue that certainly affects the members’ working condition. Of course, since you voted them into office, be the boss, and tell them to answer their emails. We’re starting to think that their touted leadership is only good for talking, and not walking — especially as they appear unable to manage even a professional response to courteous inquiries. #bloggersinpjsproblems, hey?

What does it take for the State Department to create a clear reporting mechanism that protects the confidentiality of victims?

Peace Corps Volunteer, Kate Puzey was assigned to teach English in the West African nation of Benin. When she discovered that a fellow teacher, a Beninese citizen who worked for the Peace Corps, was sexually abusing young female students, Kate reported his misconduct to the Peace Corps headquarters in Benin. The Peace Corps Inspector General’s report and several other accounts indicate that her requested confidentiality was breached in this office. A few days after the Peace Corps fired the man she accused, Kate was found brutally murdered at her home on March 11, 2009. She was found dead on the porch outside her home. Her throat had been cut. Read more here.

On November 21, 2011, President Obama signed into law the Kate Puzey Peace Corps Volunteer Protection Act of 2011 (Kate Puzey Act). The law requires the Peace Corps to: Provide comprehensive sexual assault risk-reduction and response training to Volunteers; Develop and implement a comprehensive sexual assault policy; Establish an Office of Victim Advocacy and a sexual assault advisory council; Take other specified measures to enhance Volunteer safety and security and the Peace Corps’ response to victims of sexual assault.

The perpetrator who raped this FSO, who assaulted this FS employee, and other perpetrators who assaulted other employees and were never charged could perpetrate other sexual violence. They could assault other employees or family members again. At another assignment. At another post. In the reports we’ve heard in this blog, the perpetrators were all known to the victims. They are within embassy walls, inside the building, in the cafeteria, in the training session, in the coffee shop, in the classroom next door, in the pool house, at happy hour … they could be anywhere.

We don’t know how many victims are out there but one is too many. The victims and the perpetrators are in our Foreign Service communities. If this happened to one, or two, or three …. this could happen again to others — to our friends, our spouses, our daughters, our sisters, our local staff, and even our household help. This could happen to anyone in the Foreign Service.

The State Department needs reporting procedures that provide an effective, confidential, and accessible way for employees/family members to report incidents and concerns. For reasons stated here and because the Foreign Service is actually a small town where everybody knows everybody, it is imperative that the sexual assault reporting as well as the domestic violence reporting be independent mechanisms completely separate from the chief of mission community.

Something can be done now. Not later when it’s too late.

Secretary Kerry has 59 days to get this done before he leaves office. Ask him. Our Foreign Service members and their families deserve more.

Disclaimer:

Please know that the above information is provided as general information that is intended, but not guaranteed, to be correct and up-to-date. For instance, the hotlines are taken from an online search, we have not used them nor can we verify their effectiveness. The information is also not presented as a source of legal advice. If you need legal advice upon which you intend to rely in the course of your legal affairs, please consult a competent, independent attorney. This blog does not assume any responsibility for actions or non-actions taken by people who have visited this site, and no one shall be entitled to a claim for detrimental reliance on any information provided or expressed here. Thanks.

Sexual Assault Related posts:

From Someone Who Has Unfortunately Been There: Sexual Assault Trauma Triage in the Foreign Service November 23, 2016
U/S For Management Directs Task Force to Create New Sexual Assault FAM GuidanceNovember 22, 2016
A Sexual Assault Reporting Process Foreign Service Members Deserve: If Not Now, When? Attn: @JohnKerry November 22, 2016