U.S. Consulate General Istanbul: Post On Evacuation Status With a “No Curtailment” Policy?

Posted: 1:49 am ET

 

In October 2016, the State Department updated its Travel Warning for Turkey to announce the mandatory departure of family members of employees assigned to the Consulate General in Istanbul. The announcement says that the Department of State made this decision “based on security information indicating extremist groups are continuing aggressive efforts to attack U.S. citizens in areas of Istanbul where they reside or frequent” but adds that “the Consulate General remains open and fully staffed.”

The mandatory evacuation order issued in October meant that family members departed Turkey for temporary housing typically in the Washington, D.C. area without their household effects or personal vehicles. And like all posts on mandatory evacuation, the children had to be pulled out from their schools and temporarily enrolled in local schools in the DC area. We are not sure how many family members were evacuated from post but the last data we’ve seen indicates that USCG Istanbul has approximately 80 direct-hire US employees.

By law, an evacuation cannot last longer than 180 days so after the Under Secretary of State for Management (“M”) approves the evacuation status for post (authorized or ordered), the 180-day clock “begins ticking”. The order can be lifted at any time but if family members are not allowed to return to post, and no reassignment decision has been reached, the post status could change to “unaccompanied”.  For those not in the FS, that means, family members will not be allowed to return to post and incoming employees will no longer be allowed to bring their family members to their diplomatic assignment.

The latest evacuation order for USCG Istanbul could potentially last until April 2017 unless terminated earlier, or could be extended with a new order. Note that a previous evacuation order for US Mission Turkey was terminated in September 2016 and about five weeks later, the current evacuation order was issued. Who would have thought that Istanbul would become more restrictive than say, Beirut, where employees can still bring adult family members to post?

In any case, we understand that US Mission Turkey’s DCM had a meeting recently with the staff to let them know that post and HR/EX had agreed to halt all curtailments. Apparently, employees were told they cannot leave post until they have incoming replacements. But see — if they’re not allowed to send in their requests, or if the jobs of the curtailing employees are not listed anywhere, how will folks know about these job vacancies?  How will incoming replacements come about?  We understand that the hold placed on all curtailments apparently has “no stated expiration.”

We asked the State Department about this “no curtailment” decree specific to USCG Istanbul. Below is the full official response we received:

We cannot comment on the status of individual requests, but we can confirm that it is incorrect that a “no curtailments” policy is in effect in Mission Turkey. The Department adjudicates curtailment requests on a case by case basis, in line with established regulations and procedures. In doing so, we take into account the well-being and the individual circumstances of our employees and their family members, as well as the need to ensure sufficient staffing to undertake the important work of our diplomatic posts.

We should note that we did not inquire about individual curtailments; and our question was specific to Istanbul, and did not include Ankara or Adana. You are welcome to interpret “Mission Turkey” in the most convenient way, of course.

We’ve learned that this is not the first instance of a decree issued on specific posts. In one NEA post, the Front Office reportedly made it known that it “would not accept” curtailment requests until further down the “ordered departure” road.  During the Ebola outbreak in West Africa, the Director General was also reportedly asked to implement a policy that no curtailment requests from those affected posts would be allowed until senior management decided it was “appropriate.”

We can see where the State Department is coming from; it certainly would not like to see mass curtailments from staffers but  — there is no authority in the books that prohibit curtailment requests. And as somebody familiar with the bureau puts it, “HR knows this damn well.”  

Curtailment is the shortening of an employee’s tour of duty from his or her assignment.  It may include the employee’s immediate departure from a bureau or post.  The statutory authority for curtailment is found in the Foreign Service Act of 1980.

In the Foreign Affairs Manual, 3 FAM 2443.1 allows an employee assigned abroad to request curtailment of his or her tour of duty for any reason.  The regs say that the employee should submit a written request for curtailment that explains the reasons for the request to the appropriate assignment panel through his or her counseling and assignment officer. Post management must state its support for or opposition to the employee’s request.  The Foreign Affairs Manual makes clear that a curtailment is an assignment action, not a disciplinary one.

The FAM provides any employee the right to request a curtailment for any reason at any time, regardless of where the employees are serving.  It’s been pointed out to us that this does not/not mean that the assignment panel will approve the request. We understand that the panel’s decision typically depends on the argument made by the CDO (Career Development Office) at panel and whether ECS (Employee Consultation Service) strongly supports the “compassionate curtailment.”

A source familiar with the workings of the bureau observed that if post is refusing to send out the curtailment request via cable, the employee needs to connect with his/her CDO and go the DGDirect route. If necessary, employees can also go to AFSA, as there are precedence for this in prior attempts to declare no curtailment decrees at other posts under “ordered departure” or where there were outbreaks of diseases (Ebola, Zika).

Note that 3 FAM 2446 provides the Director General of the Foreign Service the authority to propose curtailment from any assignment sua sponteAccording to the FAM, the Director General may overrule the assignment panel decision to curtail or not to curtail if the Director General determines that to do so is in the best interests of the Foreign Service or the post.

Related posts:

 

 

On Invocation of Visa Sanctions For Countries Unwilling to Accept Their Deported Nationals

Posted: 3:27 am ET

 

On January 3, the State Department published 9 FAM 602.2 on the Discontinuation of Visa Issuance Under INA 243 (D) which provides that “upon being notified by the Secretary of Homeland Security that a government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Secretary of Homeland Security notifies the Secretary of State that the country has accepted the alien.”

–> A discontinuation of visa issuance under INA 243(d) is based on an order issued by the Secretary of State to consular officers in a particular country to stop issuing visas pursuant to INA 243(d).  The Secretary may decide to order consular officers to discontinue issuing all visas in the country or a subset of visas.

–> Affected posts generally will be informed by cable which visa classifications or categories of visa applicants are subject to a discontinuation under INA 243(d) and when visa issuance must be discontinued.  When the Secretary orders discontinuation of visa issuance, the Visa Office will work with the relevant regional bureau and the affected post to provide specific guidance via cable.

Only one country, The Gambia, is currently subject to discontinuation of visa issuance under INA 243(d) though this might just be the start. There are potentially 85 countries that could be subject to a visa sanction based on their refusal in accepting their own nationals deported from the United States.  The FAM, at this time, does not include any guidance pertaining to immigrant visas.

In October last year, the State Department spokesperson said this about the visa sanction for The Gambia in the DPB:

As of October 1st, 2016, the United States and Banjul, The Gambia, has discontinued visa issuance to employees of the Gambian government, employees of certain entities associated with the government, and their spouses and children, with limited exceptions. Under Section 243(d) of the Immigration and Nationality Act, when so requested by the Secretary of Homeland Security due to a particular country’s refusal to accept or unreasonably delay the return of its nationals, the Secretary of State must order consular officers to suspend issuing visas until informed by the Secretary of Homeland Security that the offending country has accepted those individuals.
[…] The Gambia is unique in that we have applied numerous tools on how to engage, but without any result. Some other countries have responded in some way or made partial efforts to address the deficiency; The Gambia has not. We have been seeking cooperation with the Government of The Gambia on the return of Gambian nationals for some time, from the working level up to the highest level, and we have exhausted diplomatic means to resolve this matter.

Last year, ICE Deputy Director Daniel Ragsdale also went before the House Committee on Oversight and Government Reform for a hearing on “Recalcitrant Countries: Denying Visas to Countries that Refuse to Take Back Their Deported Nationals”. Below is an excerpt from his prepared testimony which provides additional background for this issue:

The removal process is impacted by the level of cooperation offered by our foreign partners. As the Committee is aware, in order for ICE to effectuate a removal, two things are generally required: (1) an administratively final order of removal and (2) a travel document issued by a foreign government. Although the majority of countries adhere to their international obligation to accept the return of their citizens who are not eligible to remain in the United States, ICE faces unique challenges with those countries that systematically refuse or delay the repatriation of their nationals. Such countries are considered to be uncooperative or recalcitrant, and they significantly exacerbate the challenges ICE faces in light of the U.S. Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001).

In Zadvydas, the Court effectively held that aliens subject to final orders of removal may generally not be detained beyond a presumptively reasonable period of 180 days, unless there is a significant likelihood of removal in the reasonably foreseeable future. Regulations were issued in the wake of Zadvydas to allow for detention beyond that period in a narrow category of cases involving special circumstances, including certain terrorist and dangerous individuals with violent criminal histories. Those regulations have faced significant legal challenges in federal court. Consequently, ICE has been compelled to release thousands of individuals, including many with criminal convictions, some of whom have gone on to commit additional crimes.

23 countries considered “recalcitrant”, 62 countries with “strained cooperation”

Countries are assessed based on a series of tailored criteria to determine their level of cooperativeness with ICE’s repatriation efforts. Some of the criteria used to determine cooperativeness include: hindering ICE’s removal efforts by refusing to allow charter flights into the country; country conditions and/or the political environment, such as civil unrest; and denials or delays in issuing travel documents. This process remains fluid as countries become more or less cooperative. ICE’s assessment of a country’s cooperativeness can be revisited at any time as conditions in that country or relations with that country evolve; however, ICE’s current standard protocol is to reassess bi-annually. As of May 2, 2016, ICE has found that there were 23 countries considered recalcitrant, including: Afghanistan, Algeria, the People’s Republic of China, Cuba, Iran, Iraq, Libya, Somalia, and Zimbabwe. As a result of their lack of cooperation, ICE has experienced a significant hindrance in our ability to remove aliens from these countries. In addition, ICE is also closely monitoring an additional 62 countries with strained cooperation, but which are not deemed recalcitrant at this time.

DHS/ICE and State/CA: measures for dealing with uncooperative countries

Responses to a country’s recalcitrance are, in part, guided by a Memorandum of Understanding (MOU) between ICE and DOS Consular Affairs, signed in April 2011. Pursuant to this MOU, ICE continues to work through U.S. diplomatic channels to ensure that other countries accept the timely return of their nationals in accordance with international law by pursuing a graduated series of steps to gain compliance with the Departments’ shared expectations. The measures that may be taken when dealing with countries that refuse to accept the return of their nationals, as outlined in the 2011 MOU, include:

♦ issue a demarche or series of demarches;

♦ hold a joint meeting with the Ambassador to the United States, Assistant Secretary for Consular Affairs, and Director of ICE;

♦ consider whether to provide notice of the U.S. Government’s intent to formally determine that the subject country is not accepting the return of its nationals and that the U.S. Government intends to exercise authority under section 243(d) of the Immigration and Nationality Act (INA) to encourage compliance;

♦ consider visa sanctions under section 243(d) of the INA; and

♦ call for an interagency meeting to pursue withholding of aid or other funding.

A State Department official on background told us today that “facilitating the removal of aliens who are subject to a final order of removal, particularly those who pose a danger to national security or public safety, is a top priority for the Department of State.”  Also that the Department’s discontinuation of visa issuance this past October was “in response to the Gambia’s failure to issue travel documents for any individuals under final order for removal.” More:

When approaching a specific country, we consider all options at our disposal, taking into account the totality of national security and foreign policy equities that could be impacted.  In many cases, significant progress has been possible through intensive diplomatic engagement.  Taking into consideration each country’s specific situation and other important U.S. interests, we work with ICE to determine the course of action best suited to securing compliance from each government.

Since visa issuance is on reciprocal basis we wanted to know how this might affect America citizens in countries subjected to visa sanctions. Here is the official response:

Our goal is to achieve success without inciting retaliation that could hurt the U.S. in other ways.   Imposition of visa sanctions on a given country is one potentially powerful tool.  However, it is important to note that what works in one country may not be effective in another.  Some governments would prefer to have their citizens stay home rather than spend their money on U.S. hotels, airlines, and tourist attractions.  Others could retaliate in ways that could be detrimental to wider U.S. security concerns, such as law enforcement, military, or counter-terrorism cooperation.

 

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FBI Agents Hung A Noose Over an African American DS Agent’s Workspace Twice, FBI Called It “Pranks”

Posted: 1:20 am ET

 

This is a hostile environment harassment case originally filed in 2009 with the final EEOC decision issued in July 22, 2014. It involves an African-American Diplomatic Security Agent and FBI Agents assigned to the FBI’s Joint Terrorism Task Force (JTTF) in Tampa, Florida. The allegations include the hanging of a noose (twice) over the wall separating the DS Agent’s cubicle and adjacent workspace, and racially motivated comments  and use of the “n-word” against then-presidential candidate Barack Obama.

Previous to the 2014 final decision, the EEOC on the July 26, 2013 appeal writes:

“[W]e determined that Complainant’s claim involved an allegation of hostile work environment that occurred during the course of Complainant’s detail to the Department of Justice, Federal Bureau of Investigations (FBI).  We found that the Agency, as Complainant’s employer, and the FBI could potentially be liable for the alleged hostile work environment.  Our previous decision determined that while the Agency issued a decision concluding that there was no basis for holding it liable for the alleged hostile work environment, the FBI failed to issue an independent final decision or join in the State Department’s final decision.  In that regard, the previous decision vacated the Agency’s decision and joined the FBI as a party to the case.  The complaint was remanded to both agencies for further processing and they were ordered to issue a joint final decision addressing the issue of their respective liability for the discriminatory hostile work environment.  The record indicates that despite the Order, the agencies issued two separate decisions addressing their positions.”

According to the EEOC, the State Department’s September 30, 2013 final decision, determined that the DS Agent-complainant was “subjected to hostile working conditions which occurred on FBI premises by FBI personnel” and, therefore, it was not liable for the conduct of FBI employees.  Moreover, the State Department contended that its “management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.”  The Agency also emphasized in its decision that Complainant did not claim that any Agency official from the Department of State took any adverse or retaliatory action against him.  The State Department concluded that there was no basis for imputing liability to the Agency.

In its July 22, 2014 final decision, the EEOC affirmed the State Department’s decision saying, “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.”

Here are the facts from the EEOC case file:

At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency’s Diplomatic Security Section facility in Miami, Florida.

On October 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to a hostile work environment from 2008 to July 2009 characterized by, but not limited to, threatening, offensive and hostile acts, derogatory comments and racially inflammatory statements.

The evidence gathered during the investigation2 of this matter indicates that, in September 2007, Complainant began an assignment with the FBI’s Joint Terrorism Task Force (JTTF) based in Tampa, Florida.  Complainant was the only State Department employee on the JTTF, which was mostly comprised of other special agents employed by the FBI. Complainant was assigned to a 15-member JTTF squad that worked in an office with opened, modular cubicles.

There is little dispute between Complainant and both agencies over the facts of this case.  The parties agree that in the spring of 2008, a noose was hung over the dividing wall of Complainant’s cubicle.  According to Complainant, at the time, he did not consider the presence of the noose to be a personal attack, but as an African American believed the action was highly offensive. When Complainant discovered that a particular FBI agent (Agent F) (white male) was responsible for hanging the noose, Complainant spoke to him about it and Mr. F apologized for the incident and took the noose down.  Complainant did not complain to any Agency or FBI official about this incident at the time, as he believed that the matter had been handled after he spoke directly to Agent F about it.

However, in the fall of 2008, conversations in the office about the upcoming presidential election began to get “heated” and specific comments were made by Agent F and two other named individuals, Agent O and Air Marshall B (both white males), that Complainant perceived as racially motivated against then-presidential candidate Barack Obama.  According Complainant, these individuals made offensive remarks such as “we can’t let some Muslim motherfucker take office” and “when I see someone with an Obama bumper sticker I speed up to see who the fuck is driving the car.”  He also said the named individuals commented that they “should put Obama bumper stickers on [their] car and go raise some hell.”  According to Complainant, such inflammatory statements were not made about the white presidential candidate. Complainant also alleged that the “n-word” was used in referring to candidate Obama. Initially, Complainant indicates that he tried not take these comments personally and to remain calm.  However, he contends that, later, the comments began to affect his working environment negatively and made him feel uncomfortable because the individuals making the statements were the same individuals that Complainant had to rely on to perform his job and for his personal safety.  Complainant asserts that he began to perceive hatred from his co-workers against African-Americans based on these comments.  He began to wonder how his co-workers felt about him.

In October 2008, another noose was hung over the cubicle adjacent to his cubicle. A Halloween mask was placed in the noose to resemble a hanging. According to Complainant, he observed the other agents laughing about the noose.  After this second noose incident, Complainant reported the conduct to his first and second line supervisors at the Agency (State) and to the individual who supervised the FBI Agents on the JTTF.  According to statements from Complainant’s supervisors at the State Department, the FBI management assured them that the matter would be investigated by the FBI’s Office of the Inspector General (OIG), and that the responsible FBI agents would be assigned to other squads and away from Complainant.

Complainant was interviewed by the FBI OIG in November 2008 while the FBI agents were interviewed in February 2009. The record further indicates that Complainant’s supervisors at the State Department asked for, but never received, a copy of the OIG report of investigation.3  According to Complainant, although FBI officials advised his State Department supervisor that the offending agents would be moved to new assignments to remedy the situation, the FBI JTTF supervisory officials failed to enforce the reassignment and did not take the action necessary to relocate the agents involved.  These facts were verified by the supervisors at State.

In the FBI’s supplemental investigation, the FBI Supervisory Special Agents (SSAs) and the Special Agent in Charge (SAC) averred that as soon as they were informed about the second noose incident, they requested an investigation from the FBI’s Office of Professional Responsibility.  However, the FBI’s OIG opted to conduct the investigation.  The SAC also said that he directed that the three FBI agents involved in the incidents be immediately moved to work areas away from Complainant. However, the evidence shows that only the junior agent was immediately moved, and while the other two eventually moved, the SSAs and SAC all concede that the two agents were often in Complainant’s work area because they needed access to investigative materials housed there. The SAC further stated that, after the OIG investigation was completed; all three agents were eventually subjected to disciplinary action.

According to Complainant, the work environment became worse for him after he reported the second noose incident and the matters were being investigated.  Specifically, Complainant contends that no one spoke to him and that two of the agents who were supposed to be relocated objected to the move and remained in his work area. He indicates that the FBI agents often mocked him. Complainant asserts that he felt alienated from his co-workers and could not perform the job he was assigned to do because his peers would not interact with him.  Complainant asserts that one of the offending agents was moved only two desks away from him and that the reassignment was not an effective remedy to stop the harassing conduct.  Complainant’s supervisor at State was informed by Complainant of the deteriorating situation, and conducted a site visit himself and confirmed from his own observations that the situation was hostile for Complainant.

On January 4, 2009, Complainant’s supervisor at the State Department, frustrated because FBI management did not appear to be taking appropriate action to remedy the situation, told Complainant to pack his things, leave the JTTF office and work on taskforce duties from home. Complainant did so, believing this was the only thing his supervisor at the State Department could do to protect him from the hostile work environment in the office in the absence of any corrective intervention by the FBI.  However, Complainant felt that he was being punished by having to leave the office while the offending agents were still in the office performing their jobs. Complainant contends that the hostile work environment did not end until his assignment was changed in July 2009.

In its September 30, 2013 final decision, the Agency determined that Complainant was subjected to hostile working conditions which occurred on FBI premises by FBI personnel and, therefore, it was not liable for the conduct of FBI employees.  Moreover, the Agency contends that its management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.  In addition, the Agency emphasizes in its decision that Complainant does not claim that any Agency official from the Department of State took any adverse or retaliatory action against him.  Therefore, the Agency concluded that there was no basis for imputing liability to the Agency.

Excerpt below from the EEOC’s analysis and findings:

To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. […] The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance at 6.

FBI claims the two “noose” incidents were mere pranks

In applying this standard, we find that the evidence of record supports Complainant’s claim of two “noose” incidents, as well as a working environment where Complainant was subjected to derogatory comments and racially inflammatory statements occurring from the spring of 2008 to July 2009.  The FBI, however, has argued in its separate September 30, 2013 decision that the offending FBI agents were not motivated by Complainant’s race when, in two separate incidents, they hung a noose in Complainant’s work area.  The FBI claims that the incidents were mere pranks directed at another employee and not at Complainant based on his race.  The FBI also determined that the remarks by agents concerning the 2008 presidential election and candidate Barack Obama were not racially motivated.  The FBI argues that the agents merely expressed their opposition to a particular political candidate and that their comments were not a result of any animus toward Complainant’s protected class.

We disagree with the FBI’s position. In limited circumstances, the Commission has held that certain events, by themselves, may support a finding of discrimination under Title VII. See Juergensen v. Dep’t of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman’s noose is “a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans”);  Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996).  Moreover, the record is clear that derogatory and racially inflammatory language, including the use of a highly charged racial epithet (the n-word), was openly used by the FBI agents in Complainant’s presence.  Moreover, the fact that the remark was not specifically directed toward complainant is not dispositive.  See Barber, Eley, Powell and Johnson v. Department of the Navy, EEOC Requests Nos. 05A50657, 05A50771, 05A50972, 05A50973 (March 16, 2006).  Therefore, we find that the evidence of record supports a finding that Complainant was subjected to a racially hostile work environment while serving on the FBI task force in 2008 and 2009.

Agency’s liability

In considering the Agency’s liability for this discriminatory hostile work environment, we note that an Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992).  The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996).  Appropriate corrective action is a response that is reasonably calculated to stop the harassment.

FBI failed to advise the State Department of investigation results

The record establishes that when Complainant informed his State Department management of the hostile work environment to which he was being subjected, Agency officials immediately contacted Complainant’s FBI supervisors and were advised that the offending agents would be assigned to other teams.  Because of the unique circumstances involved in this matter, the Agency had no authority over the FBI agents and did not initiate an investigation because the matter occurred on FBI premises.  The Agency also indicates that although the FBI conducted an investigation, the FBI failed to advise the Agency of its results.  The record further indicates that Complainant’s State Department supervisor met with Complainant and advised him of the FBI’s plan to remove the offending agents and asked if Complainant wanted to take further action.  Complainant elected not to pursue any further action initially, believing that the FBI’s promised intervention into the matter would end the hostile work environment.  When Agency management later learned from Complainant that his work environment had not, in fact, improved, and that he was being alienated at the FBI offices, Complainant’s supervisor decided to have Complainant work from home in an attempt to eliminate Complainant’s exposure to the hostile work environment that the FBI had failed to end.

FBI failed to end hostile environment

The record reflects numerous emails sent between various members of Complainant’s management team at the Department of State in their efforts to support Complainant.  These emails support the affidavits of State Department officials and Complainant himself, that they initially thought that the FBI’s response to the alleged harassment was adequate.  However, when State Department management learned that the FBI had failed to end the hostile environment, it became disillusioned with the FBI’s efforts and removed Complainant from the workplace in order to protect him from further harassment. Complainant testified that he believed the Agency did everything it could to support him.

Diplomatic Security Agent-Complainant was removed from workplace

We find that when the State Department management learned of the harassment, it took prompt action by immediately contacting Complainant’s FBI supervisors in an attempt to address Complainant’s concerns and end the hostile environment.  However, because the hostile environment was created by FBI employees at an FBI location, Complainant’s supervisors had no direct authority to remedy the situation.  Instead, the Agency was forced to rely on their FBI counterparts in management to address Complainant’s concerns.  The record reflects that Agency officials kept in constant contact with Complainant during the course of the FBI’s investigation into Complainant’s allegations and, to the best of its ability, the Agency followed up on the progress of the FBI investigation.  The record further indicates that once the Agency learned that the FBI’s investigation did not alleviate the hostile environment to which Complainant was being subjected, the Agency removed Complainant from the environment and permitted him to work from home until his assignment with the FBI was terminated.  The Department of State admits that Complainant was subjected to a hostile work environment while working at the FBI.  However, record evidence shows that State Department management took prompt and immediate action to report Complainant’s claims to FBI officials and, when the FBI failed to remedy the situation, removed Complainant from the FBI work site in order to prevent further exposure to the hostile work environment.  Accordingly, we find that there is no basis for imputing liability to the Department of State for the discriminatory hostile work environment in this case.

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@StateDept Task Force For New Sexual Assault FAM Guidance – An Update

Posted: 12:57 am ET

 

We’ve written about nine blogposts on sexual assaults and/or lack of clear sexual assault reporting guidance in the Foreign Service since August this year (see links below).   On November 22, the State Department finally directed a task force to create a new section in the Foreign Affairs Manual for sexual assault (see U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance).

Mindful that there are 35 days to go before a new administration takes office, we requested an update on the task force convened by “M” to craft the sexual assault guidance in the FAM.

A State Department spox sent us the following:

“The Department is committed to the work the taskforce is doing to create a sexual assault section for the FAM, work that will continue past inauguration day. Currently, the Department has policies and procedures relating to sexual harassment and workplace violence. Employees and their family members can receive assistance and advice from MED, DS and S/OCR on these issues.

 The taskforce is initially focused on establishing FAM definitions and will then build out the program, communications and training. The group has met with Peace Corps and will soon meet with DOD to understand what each has done on this issue. Both of those agencies dedicated several years to building their programs.

The taskforce includes members from MED, HR/ER and HR/DGHR, M staff and M/PRI, DS/DO/OSI and DS front office, S/OCR, and L. The group has also heard from a number of diplomatic community members at post who were eager to contribute ideas and offer feedback throughout the process. The group welcomes this contribution and feedback.”

 

So 35 days to go but we already know that the new guidance will not be ready until after January 20. We are pleased to hear that the taskforce is consulting with both DOD and Peace Corps who each has its separate reporting mechanism.  We are certain that the bureaucracy will continue to grind despite the transition but we do not want this to fall through the cracks.  If you are a member of the Foreign Service who provided feedback to this taskforce, and if you are a member of the FS community who considers an assault on one as an assault on all, you’ve got to keep asking until this gets done.

The Department’s Anti-Harassment Program is managed by the S/OCR, an office that reports directly to the Secretary of State. It conducts inquiries into allegations of sexual and discriminatory harassment in the Department.  It is not the appropriate office to handle sexual assault crimes. To initiate the EEO complaint process, regulations require that employees contact S/OCR or an EEO counselor within 45 calendar days of the alleged discriminatory act in order to preserve the right to file a formal complaint of discrimination with S/OCR. Email: socr_direct@state.gov.

The Department’s policy on workplace violence is governed by 3 FAM 4150, last updated in April 2012.

workplacev

Under Employees’ Responsibilities, the FAM provides the following guidance:

In the event of an immediately threatening or violent situation, all Department of State employees should:

(1) If the incident takes place in the United States, call 911 when there is an injury or an immediate risk of injury in the workplace;

(2) Alert the appropriate law enforcement or security office at his or her location when there is risk to his or her safety or the safety of others, injury, or immediate risk of injury. In the Washington, DC area dial extension 7-9111 or the appropriate telephone number for the law enforcement or security office at his or her location;

(3) Immediately report threatening or violent behavior to supervisors after securing emergency medical assistance as needed;

(4) Move to a safe area away from the individual(s) making threats or exhibiting violent behavior. Do not confront the individual or individual(s); and

(5) Take all threats and acts of violence seriously.

A close reading of this section on workplace violence, makes one think that perhaps the drafters were thinking of an employee “going postal”. This certainly provides no guidance for victims of sexual assault.  “Take all threats and acts of violence seriously,” of course, doesn’t make sense when one contemplates about a colleague who is also a rapist. It’s important to note that approximately 3 out of 4 of sexual assaults are committed by someone known to the victim; that “friend” or “buddy” is not going to threaten you that he’s going to assault or rape you before he commits the crime.

The workplace violence section has more guidance on what to do with an employee exhibiting violent behavior than what to do with the victims. Immediate actions recommended include review of “whether an independent medical exam should be offered” to the violent employee. Short-term and long-term responses include administrative leave; counseling from supervisor or higher management official; appropriate disciplinary action, up to and including separation; curtailment; and/or medical evacuation. All focused on the perpetrator of workplace violence.

Yes, the Department has policies and procedures relating to sexual harassment and workplace violence; and you can see that they are sorely lacking when it comes to addressing sexual assaults.

 

Sexual Assault Related posts:

 

 

 

Sexual Violence: Why Is a Consistent Definition Important? Attn: @StateDept Task Force

Posted: 12:41 am ET

 

Via the Centers for Disease Control and Prevention:

Why Is a Consistent Definition Important?

A consistent definition is needed to monitor the prevalence of sexual violence and examine trends over time. In addition, a consistent definition helps in determining the magnitude of sexual violence and aids in comparing the problem across jurisdictions. Consistency allows researchers to measure risk and protective factors for victimization in a uniform manner. This ultimately informs prevention and intervention efforts.

Sexual violence is defined as a sexual act committed against someone without that person’s freely given consent.  Sexual violence is divided into the following types:

  • Completed or attempted forced penetration of a victim
  • Completed or attempted alcohol/drug-facilitated penetration of a victim
  • Completed or attempted forced acts in which a victim is made to penetrate a perpetrator or someone else
  • Completed or attempted alcohol/drug-facilitated acts in which a victim is made to penetrate a perpetrator or someone else
  • Non-physically forced penetration which occurs after a person is pressured verbally or through intimidation or misuse of authority to consent or acquiesce
  • Unwanted sexual contact
  • Non-contact unwanted sexual experiences

Completed or attempted forced penetration of a victim ─ includes completed or attempted unwanted vaginal (for women), oral, or anal insertion through use of physical force or threats to bring physical harm toward or against the victim. Examples include

  • Pinning the victim’s arms
  • Using one’s body weight to prevent movement or escape
  • Use of a weapon or threats of weapon use
  • Assaulting the victim

Completed or attempted alcohol or drug-facilitated penetration of a victim ─ includes completed or attempted unwanted vaginal (for women), oral, or anal insertion when the victim was unable to consent because he or she was too intoxicated (e.g., incapacitation, lack of consciousness, or lack of awareness) through voluntary or involuntary use of alcohol or drugs.

Completed or attempted forced acts in which a victim is made to penetrate a perpetrator or someone else ─ includes situations when the victim was made, or there was an attempt to make the victim, sexually penetrate a perpetrator or someone else without the victim’s consent because the victim was physically forced or threatened with physical harm. Examples include

  • Pinning the victim’s arms
  • Using one’s body weight to prevent movement or escape
  • Use of a weapon or threats of weapon use
  • Assaulting the victim

Completed or attempted alcohol or drug-facilitated acts in which a victim is made to penetrate a perpetrator or someone else ─includes situations when the victim was made, or there was an attempt to make the victim, sexually penetrate a perpetrator or someone else without the victim’s consent because the victim was unable to consent because he or she was too intoxicated (e.g., incapacitation, lack of consciousness, or lack of awareness) through voluntary or involuntary use of alcohol or drugs.

Nonphysically forced penetration which occurs after a person is pressured verbally, or through intimidation or misuse of authority, to consent or submit to being penetrated – examples include being worn down by someone who repeatedly asked for sex or showed they were unhappy; feeling pressured by being lied to, or being told promises that were untrue; having someone threaten to end a relationship or spread rumors; and sexual pressure by use of influence or authority.

Unwanted sexual contact – intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person without his or her consent, or of a person who is unable to consent or refuse. Unwanted sexual contact can be perpetrated against a person or by making a person touch the perpetrator. Unwanted sexual contact could be referred to as “sexual harassment” in some contexts, such as a school or workplace.

Noncontact unwanted sexual experiences – does not include physical contact of a sexual nature between the perpetrator and the victim. This occurs against a person without his or her consent, or against a person who is unable to consent or refuse. Some acts of non-contact unwanted sexual experiences occur without the victim’s knowledge. This type of sexual violence can occur in many different settings, such as school, the workplace, in public, or through technology. Examples include unwanted exposure to pornography or verbal sexual harassment (e.g., making sexual comments).


Reference

Basile KC, Smith SG, Breiding MJ, Black MC, Mahendra RR. Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements, Version 2.0. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention; 2014.

 

Sexual Assault Related posts:

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Peace Corps OIG: 53% of Rapes Perpetrated on Volunteers Not Reported, See Why

Posted: 2:18 am ET

 

The Inspector General for the Peace Corps released its final evaluation report of the Peace Corps’ Sexual Assault Risk Reduction and Response Program.  The report notes that there were 513 sexual assaults entered into the Peace Corps’ Consolidated Incident Reporting System between September 3, 2013 and September 29, 2015.

In 2014, Volunteers reported 251 sexual assaults and there were 241 sexual assaults in 2015. The assaults in 2015 included 52 rapes, 35 aggravated sexual assaults, and 154 non-aggravated sexual assaults.

The main findings are:

  • The Peace Corps largely complied with the requirements in the Kate Puzey Act.
  • Compared to our SARRR evaluation in 2013, the Peace Corps markedly improved how it supported Volunteers who had reported a sexual assault. However we found individual cases where the Peace Corps did not meet its standard to respond effectively and compassionately to victims of sexual assault, including a few instances of victim blaming and improperly sharing confidential details with staff.
  • Some applicants were either not aware of the crime and risks previous Volunteers had faced in their country of service or they did not understand the information that was provided to them.
  • The SARRR program did not fully utilize some staff with SARRR expertise. The SARRR program would also benefit from a risk reduction strategy that tailors training to the country of service, addresses the risks of sexual harassment, and identifies factors that make sites unsafe.
  • Finally, the SARRR training’s design and delivery may have detracted from Volunteer comprehension and learning.

The Kate Puzey Peace Corps Volunteer Protection Act of 2011 (the Kate Puzey Act) required the Peace Corps to undertake a number of reforms, including providing sexual assault risk reduction and response (SARRR) training for Volunteers, developing a comprehensive SARRR policy, and training overseas staff on that policy. The Act directed the Peace Corps OIG to evaluate the effectiveness and implementation of the training and policy, and to review a statistically significant number of sexual assault cases.

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Stats on Rapes and Sexual Assaults

Peace Corps Volunteers and trainees reported 251 sexual assaults in 2014 and 241 sexual assaults in 2015. The assaults in 2015 included 52 rapes, 35 aggravated sexual assaults, and 154 non-aggravated sexual assaults.  Female Volunteers reported the majority of these sexual assaults (228 cases). Male Volunteers reported 13 sexual assaults including 1 rape, 6 aggravated sexual assaults, and 6 non-aggravated sexual assaults.

Starting in 2014, the Peace Corps began surveying Volunteers at the close of their service regarding crimes they had experienced and not reported to the agency. Survey results indicated that the proportion of Peace Corps victims who did not report one or more rapes or aggravated sexual assaults was similar to the proportion of Peace Corps victims who did not report other crimes: roughly 50 percent of crimes against Volunteers were not reported. This Peace Corps analysis indicated that 53 percent of rapes and 49 percent of aggravated sexual assaults were not reported. It also showed that 85 percent of surveyed respondents who experienced at least one non-aggravated sexual assault had not reported one or more of them to the Peace Corps.

Available Help and Agency Reporting

The evaluation found that the agency had provided contact information for: the Peace Corps Inspector General, a 24-hour sexual assault hotline for Volunteers, the Peace Corps Office of Victim Advocacy, and the Sexual Assault Response Liaison in the Volunteer’s country of service as required by the Act.
[…]
The Kate Puzey Act required the Peace Corps to create a system “for restricted and unrestricted reporting of sexual assault.” Volunteers may file either a “restricted” or a “standard” report, depending on which response services they would like the agency to provide. According to MS 243 Procedures, the restricted reporting option “allows Volunteers to request certain specific services without dissemination of personally identifying information about the Volunteer or the details of the sexual assault beyond those who are directly providing the services, and without automatically triggering an official investigative process.” The agency treats all reports as restricted until the Volunteer decides to choose a standard report, and a Volunteer may elect to convert his or her restricted report to standard at any time.

peace-corps1
Some Volunteers had not learned important information in the sexual assault risk reduction and response sessions, including the difference between restricted and standard reporting, the services available to a victim of a sexual assault, how to report a sexual assault incident, and the identity and role of Sexual Assault Response Liaisons at post. The training was insufficiently tailored to the country of service (as required by the Act), was not responsive to the needs of diverse Volunteers, and did not address the problem of sexual harassment. In addition, some staff delivered the training inconsistently due to poor training skills. Furthermore, the Peace Corps’ approach to assessing the Volunteer training was incomplete and did not provide a useful measure of training effectiveness.
[…]
[T]he agency often accommodated Volunteers’ requests to change sites for safety and security reasons, in some cases Volunteers were separated from the Peace Corps rather than relocated to another site. Volunteers we interviewed felt disenfranchised from the discussions regarding their safety and continued service.[…]We found that staff and Volunteers had a mistaken belief that they were limited to six or fewer counseling sessions after a sexual assault. As a result, some Peace Corps Medical Officers provided incorrect information about the availability of counseling. We concluded that some Volunteer sexual assault survivors could have been deterred from reporting their need for counseling.

Non-Reporting Analysis

The analysis summarized the primary reasons Volunteers had not reported their sexual assaults, which included: embarrassment, self-blame, not perceiving the sexual assault as a crime or serious event, and believing that there was nothing the Peace Corps could do about the assault. For non-aggravated sexual assaults—which were both the most frequently reported type of assault, as well as the most under reported—surveyed Volunteers had not reported them for three main reasons: they did not think the incidents were serious or threatening; they perceived the incident as commonplace in the environment where they served; and they did not believe there was anything the Peace Corps could do to address it.

Other reasons that surveyed Volunteers said they had not reported their sexual assaults included concerns about how Peace Corps staff might respond, such as blaming the victim for their assault, failing to respect the victim’s privacy and confidentiality, or simply not responding to the victim in a timely and supportive manner. Volunteers also indicated in their survey responses that they had not reported a sexual assault because they anticipated adverse consequences, such as being required to change their site, sent home, or punished for having violated a Peace Corps policy. These concerns were significantly more pronounced for rape victims and aggravated sexual assault victims than for non-aggravated sexual assault victims.

Among surveyed Volunteers who had not reported their assaults to the Peace Corps because they were concerned about how staff would respond to them or the potential adverse consequences of reporting, a relatively high percentage had served at a small number of posts. Two of the 54 posts in the survey constituted almost 25 percent of the Volunteers who did not report their assaults because of these concerns. Nine posts represented nearly 50 percent of the Volunteers who had not reported an assault for similar reasons.

 

The PC/OIG review includes interviews with 127 staff, 72 Volunteers, visits to 6 countries, and review of 138 sexual assault cases.  The report also includes 36 recommendations for the Peace Corps.

The report is a crucial reference as the State Department task force works on FAM guidance for sexual assault in the Foreign Service. NSVRC also notes that supporting survivors means assisting them with financial burdens as well as physical & emotional ones. Read here: 

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@StateDept Cites 10 Cases Where Employees Were Placed on Admin Leave, See #10

Posted: 12:41 ET

 

3 FAM 3464 defines “Excuse Absence” (commonly known as administrative leave) as absence from duty administratively authorized or approved by the leave-approving officer and does not result in a charge in leave of any kind or in loss of basic salary. 3 FAM 3464.102 also provides for Conduct-Related Excused Absence “Excused absence may be directed in rare circumstances and when authorized as provided by 3 FAH-1 H-3461.2 when an investigation, inquiry, or disciplinary action regarding the employee’s conduct is pending, has been requested, or will be requested within 2 workdays, and the continued presence of the employee in the workplace may pose a threat to the employee or to others, or may result in loss of, or damage to, U.S. Government property, or may otherwise jeopardize legitimate U.S. Government interests.”

According to grievance records, during the discovery phase of FSGB No. 2015-029, the State Department provided grievant with a spread sheet identifying 10 cases in which employees were placed on administrative leave pursuant to 3 FAM 3464.1.-2.

Via FSGB:  We quote the stated reasons for the administrative leave as follows (with numbering added):

  • 1) Ongoing investigation. Employee admitted to taking extra passport applications from courier beyond allowed quota. . . . (3 separate cases);
  • 2) Arrest based on violation of protective order;
  • 3) Allegations of misconduct and alcohol consumption while at US Embassy;
  • 4) Employee’s clearance suspended – reasons unknown. Employee failed to meet DS for compelled interview;
  • 5) By letter dated 11/14/13, PSS notified her of suspension of clearance. . . . ;
  • 6) Security Clearance suspended by DS. . . . ;
  • 7) DS investigating employee fraud/impersonating supervisor to obtain federal housing benefits;
  • 8) Arrested on child pornography charges. (no indication employee used USG equipment);
  • 9) Incident resulting in death of Ambassador and others. Admin leave while office evaluates appropriate action (3 separate cases);
  • 10) Employee investigated based on allegations of the rape of 2 women.

Grievant lacks any basis for asserting that the AL granted in these other cases did not serve USG “interests.” Those interests are broad, going far beyond the obvious trauma and safety issues as to other employees. Realistically, all 10 cases (based on the brief descriptions given in the record) invoked some type of governmental interest that was rather self-evident, e.g., stopping an employee from impersonating a supervisor or investigating the actual suspension of someone’s security clearance.21 The bottom line is that the Department’s decisions to grant AL to other persons who were subject to various investigations is not even pertinent to the grievant, [REDACTED].

The FSGB finds that “administrative leave is not an entitlement that would provide the grievant with certain safeguards, but is instead a prerogative administered by management to meet the needs of the Service.”

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Sexual Assault Related posts:

 

Administrative Leave: A Prerogative to Meet the Needs of the Service, Not/Not an Entitlement

Posted: 12:37  pm RT

 

Unlike the MSPB, the Foreign Service Grievance Board does not identify its precedential decisions but the case below on administrative leave is worth noting whether this is precedent setting or not. In this case, FSGB says that administrative leave is 1) not an entitlement, 2) that it is a prerogative administered by management to meet the needs of the Service, 3) and that Department was not obligated to provide grievant with an explanation for its decision to deny admin leave.

Via FSGB:

Grievant is a Diplomatic Security Service Special Agent who became involved in an altercation with a local civilian while off duty during a temporary duty (TDY) assignment in Honolulu. This incident resulted in the discharge of his service weapon and the death of the civilian. The State of Hawaii brought criminal charges against grievant, and the Department of Justice (DOJ) declined to represent him, finding that the incident was not the consequence of an official act or performance of his official duties.

For unspecified reasons, the Department placed grievant on administrative leave twice: first, in the aftermath of the shooting, when he was under judicial order not to leave Honolulu, and second, during the pendency of his first trial in 2013 (which resulted in a hung jury). Facing a second trial in 2014, grievant asked the Department to place him on administrative leave again. The Department ultimately denied this latter request and upheld its decision in an agency-level grievance.

Grievant acknowledged that under regulation (3 FAM 3464) the Department has discretionary authority to grant or deny administrative leave. He argued that although the Department is not compelled to grant his request, the weight of both equity and precedent suggest that it should do so. He asserted that the circumstances under which the Department earlier took the initiative to place him on administrative leave are substantially the same as those for which he later requested administrative leave (i.e., for his second trial) and arise from the same incident. He contended that if the Department is to “change” its decision regarding whether to grant him administrative leave, it must provide him an explanation of why it did so.

As the instant appeal does not concern discipline, grievant bears the burden of demonstrating that his grievance is meritorious. We found that grievant had failed to demonstrate that the Department had any obligation to approve his request for administrative leave or that it had violated any law or regulation in not doing so. Finally, we found that the facts of this case do not establish that the Department “changed” its decision; rather, the various decisions it made regarding whether to place grievant on administrative leave were separate, independent decisions. The Board concluded that the Department was not obligated to provide grievant with an explanation for its decision to deny AL. The appeal was denied in its entirety.

Read in full below:

 

Related posts:

 

U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance

Posted: 5:08 pm PT

 

The message below addressing sexual assault was sent to all State Department employees on November 22, 2016.  Several copies landed in our inbox.  The State Department sent us a note that says they want to make absolutely sure that we have seen this, and gave us an “officially provided” copy.

 

A Message from Under Secretary Pat Kennedy
November 22, 2016

Sexual assault is a serious crime.  It can traumatize victims and have a corrosive effect on the workplace.  The Department is determined to do all it can to prevent sexual assault, and, if it does occur, to support victims and bring the perpetrators to justice.  We are committed to effectively and sensitively responding to reports of sexual assault and to ensuring victims are treated with the care and respect they deserve.

The Department has policies and procedures relating to sexual harassment and workplace violence.  We recognize these policies may not address all issues specific to sexual assault and that sexual assault is more appropriately dealt with in its own FAM section.  At my direction, an inter-bureau taskforce is in the process of creating this new FAM section.  Among the issues the taskforce will take up are reporting processes, confidentiality, sexual assault response training, and potential conflict of interest issues.

As we work to complete a stand-alone sexual assault FAM section, it’s important to note that there are and have been policies and procedures in place to help employees and their family members who are sexually assaulted get the medical care they need and to bring perpetrators to justice.

Medical services are available at post, and personnel from the Bureau of Medical Services (MED) can also provide advice from Washington, DC.  Post’s Health Unit healthcare providers are the first responders for medical evaluation and treatment overseas and will abide by strict patient/provider confidentiality.  An employee or member of the Department community who has been sexually assaulted may also report the incident to MED’s Clinical Director (currently Dr. Behzad Shahbazian) at 202-663-2976 during business hours.  After hours and on weekends/holidays, victims may contact the MED Duty Officer at 202-262-9013 or via the Operations Center at 202-647-1512.

For reported sexual assaults that are committed by or against members of the Department community or occur within a COM facility or residence, RSOs serve as the law enforcement first responders.  Every reported sexual assault is handled as a criminal matter that may be prosecuted in the United States under federal extraterritorial laws.  For more guidance on the handling of such cases, see 16 STATE 56478.

If a victim overseas wants to report a sexual assault to law enforcement authorities, but prefers not to report it at post, he or she can contact the Office of Special Investigations (DS/DO/OSI), via telephone at 571-345-3146 or via email at DS-OSIDutyAgent@state.gov<mailto:DS-OSIDutyAgent@state.gov>.  The DS/DO/OSI duty agents are available 24 hours a day, seven days a week and can investigate an allegation independent of post management.  OSI agents have been trained to handle such cases and will work with the victim and can also provide information about the Victims’ Resource Advocacy Program available at vrap@state.gov<mailto:vrap@state.gov>.

Victims may also report sexual harassment directly to the Office of Civil Rights<http://socr.state.sbu/OCR/Default.aspx?ContentId=6666> (S/OCR) at http://snip.state.gov/f5h or via phone at 202-647-9295 and ask to speak with an Attorney-Adviser.  Pursuant to 3 FAM 1525, S/OCR oversees the Department’s compliance with anti-harassment laws and policies and conducts harassment inquiries.

The working group developing the new FAM section is consulting with other agencies about best practices in such areas as communication, training, and post-attack medical and mental health support and will integrate appropriate elements of these programs to ensure that the Department’s policies on sexual assault are victim centered and effective.

The Department’s position is clear: there is zero tolerance for any form of violence, including sexual assault, within our Department community. We understand these are sensitive and difficult situations, but we strongly encourage victims to come forward so the Department can take the appropriate steps to ensure the victim’s safety and bring the perpetrator to justice.

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Sexual Assault Related posts:

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

 

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 5647all 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.”

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