Family Violence and Military Policies and Procedures

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2 Family Violence and Military Policies and Procedures By Vicky 0. Kim&reZZ Diane sat in the courtroom waiting to face her husband. He bad threatened to kill her before. He was absent without leave from the Army. He bad tracked her down through the Army Champus (Civilian Health and Medical Program) when she filed for medical insurance coverage the last time her daughter was sick. Last week be & the base in Louisiana andfound her in Georgia. Today he was in an orange jumpsuit in a small South Georgia coutttvom. He bad been arms@ la9 night aper he tried to kill her. Even though in handcuffs and with an offier holding him, the minute be saw her he started a* her. Be&m b&e loose in the court, the judgepoundedfor quiet, while bailiffs and oflcers ran toward the corn motion. You better be glad they locked me up because the minute Zget out of be?z, I m going to killyou, bitch. Diane crouched behind her Georgia Legal S&vices lawyer who badfiledfor an emergencyprotective order in the event of his release. He was going after her in front of law enjorcement oflicen, the judge, and lawyers. He didn t care. Family violence law is an expanding legal specialty area with comprehensive civil and criminal remedies to aid victims. Most states now have specific civil and criminal procedures to address family via lence as a separate action. Similarly newly enacted federal laws provide new federal rights and remedies and monies for services to help victims2 Family violence cases involving military service members present a unique legal challenge often requiring that the legal services lawyer understand state-specific laws and armed forces regulations and procedures that are available to victims caught up in the military justice system. In this article I introduce the nonmilitary lawyer to the relevant armed forces regulations on family violence and the relevant terminology that, while treading through the military bureaucracy, the lawyer needs to represent clients. t See, e.g., Georgia Family Violence Act, Ga. Code Ann l through 4 (2000); Stalking Act Protective Orders, id through 91; Permanent Protective Orders under the Family Violence Act, id Se also the National Council of Juvenile and Family Court Judges database of all state domestic violence laws over the past eight years from the fifty states, the District of Columbia, and most U.S. territories, Vicky 0. Kimbrell is a staff attorney, Georgia Legal Services, 1100 Spring St., Suite ZOOA, Atlanta, GA 30309; *Violence Against Women Act of 2OO0, Pub. I.. No (codified in various code sections, including 8 U.S.C , battered immigrant women protections; 42 USC ; hh, full faith and credit; 18 USC. J 2261~, interstate stalking). vkimbrell@glsp.org. MAY-JUNE JOURNAL OF POVERTY LAW AND POLICY 51

3 s ?..-...~~...rjjw Lz By statute the Secretary of the Department of Defense must establish regulations for immediate action when an incident of domestic violence inflicts physical injury.3 In response the Defense Secretary established by directive the Defense Department s family advocacy program policy to prevent, identify, and treat spouse abuse.* Each military branch has implemented a family advocacy program with its own set of policies and procedures regarding family violence and the armed services personnel5 Most recently the Defense Secretary has encouraged a collective and long-term strategic plan to keep victims safe and make batterers accountable.6 Yet, most family advocacy programs focus on intervention and prevention of family violence. Few cases involving military members reach criminal prosecution.7 Disciplinary action is a last resort8 A review of military regulations shows that the continued effectiveness of the military and rehabilitation of the offender are the primary concerns of each military branch. I. Family Violence in the Military Community The military community is a vast world unto itself with distinct and separate legal and social systems. As of June 30, 2000, active duty military personnel numbered 1,384,338.9 The Defense Department reported in 1995 that out of 855,939 spouses in the military came 16,282 substantiated reports of spouse maltreatment and 22,107 total spouse maltreatment reports.1o Defense Department statistics on abuse victims in the military revealed that 93 percent of the abuse victims were women, and 57 percent were 25 or younger. l1 Seventy-eight percent of the spouse abuse victims had children, and more than half had been married for two years or less. * Like their civilian counterparts, many victims with military perpetrators do not report abuse because they are afraid of the consequences to their service member partner. In a 1994 survey of victims 74 percent of the victims indicated that they 3 10 USC ( * Dep t of Def. Directive No , Family Advocacy Program (1992), uz.wi~uhle at hap://web7.whs.osd.mil/dodiss/directives/dir7.html. 5Army Regulation , The Army Family Advocacy Program (19981, availubk ut U.S. Navy, Secretary of Navy Instruction No A, Family Advocacy Program (1995); U.S. Marine Corps Headquarters, MCOP B, Marine Corps Family Advocacy Program Standard Operating Procedures (1994); U.S. Air Force, Secretary of the Air Force, Air Force Instruction , Family Advocacy Program (1994), avuihble at U.S. Coast Guard, Family Advocacy Program, Commandant Instruction B (1998), available at OLPFiles/USCG/OO9826.pdf. 6 Department of Defense Taskforce on Domestic Violence Report 51 (20011, availuhle c4t Although data are hard to obtain, it is apparent that relatively few military personnel are prosecuted or administratively sanctioned on charges stemming from domestic violence. Id. at 52. s Commanders should consider Committee recommendations, especially regarding rehabilitative potential, when taking disciplinary and administrative actions against soldiers which may be detrimental to the soldier s military career or future promotion opportunities. Army Regulation , ch Wash. Headquarters Servs. Directorate for Information Operations & Reports, Department of Defense Active Duty Military Personnel Strengths by Regional Area and by Country 6 (20001, avaikable at David W. Lloyd, Office of the Undersec y of Def. for Personnel & Readiness, Personnel Support, Families 81 Educ., Addressing Spouse Abuse in the Department of Defense (n.d.1 (tbl.: DOD FY90-95 Child and Spouse Maltreatment ). r U.S. Air Force Personnel Operations Agency & Office of the Undersec y of Def. for Personnel & Readiness, Personnel Support, Families & Educ.,Victims Survey Preliminary Report 11, 20 (1994). 121d. at CLEARINGHOUSE REVIEW ( MAY-JUNE 2001

4 Famtly Violence und Mrlitury,/r),,,,,, were afraid of what the military authorities would do to their spouse if they knew about the abuse. I3 These fears included that their spouse s military career would be in trouble (68 percent); the military would punish their spouse (64 percent); their spouse would experience unpleasantness at work (56 percent); and the military would kick out their spouse (56 percent).14 Fifty-nine percent of spouse abuse victims had heard of the family advocacy program, while 41 percent of the victims had not.15 If civilian authorities receive reports of domestic violence perpetrators among active duty members, rarely does the civilian community keep track of how many of its domestic violence cases involve the military. Often civilian police do not identify abusers as military members and do not report them to military authorities on base. Military statistical data do not include them. Thus, as in the civilian world, the military does not report about, notice, or reflect in military family violence statistics a great deal of violent conduct in its midst. II. Jurisdictional Issues with the Military The jurisdictional issues related to military installations can lead to challenging and complicated problems for a victim who needs assistance in a domestic abuse situation. While uniformed members are subject to the Uniformed Code of Military Justice, civilian members of the household are not.16 Military regulations recognize that while military personnel are not subject to state criminal or civil laws for their acts within the scope of their duties, they have no protection from state and civil laws for their acts outside the scope of their military duties.17 Military installations have four categories of legislative authority. Most Army installations are under the exclusive federal jurisdiction of the federal government, which has full legislative authority within its borders.18 Civil laws that require state authorities enforcement apply only to the extent that military regulations do not conflict with state law and the installation commander invites state authority onto the installation.*9 With concurrent jurisdiction, neither the federal government nor the state has complete authority over the installation. The federal government has limited legislative authority, but the states reserve other authority beyond the service of process. 2o Where the federal government has a proprietary interest, the federal government has some degree of ownership or right to use the land in that state but does not have any, except specified, legislative authority.* If the domestic violence incident occurs off base, civilian authorities can refer cases involving an active duty member to officials on the military installation, or they can prosecute the case themselves.22 If a civilian court tries the active duty member, the military, if aware of the incident, can later take its own separate action against the soldier.~ The military can also ask civilian officials to turn over the case to the military authorities and contend with the service member under administrative or disciplinary procedures or under the Uniform Code of Military Justi~e.*~ Although domestic abuse on base has jurisdictional complexities, the jurisdic- 13Zd. at 21. I4 Id. at Zd. at 19. l6 Army Regulation , strpra note 5, at app. D-la. l7 Id., apps. D-2b to c. IsId., app. D-la. l9 Id. z Zd., app. D-lb. 21 Id., app. D-lc. 22 Id., ch Id. 24Zd., ch. 4-1; 10 U.S.C. $ 934 (2001). MAY-JUNE JOURNAL OF POVERTY LAW AND POLICY

5 rummy vaolence and Milita yfustice tional issues do not limit military social service providers from cooperating with local civilian community service providers. Pursuant to defense Department directive , family advocacy programs are to cooperate with civilian authorities in addressing the problems of family violence.25 The most effective way of assuring cooperation between military and civilian agencies regarding jurisdictional con- The most effective way of assuring cooperation between the military and civilian agencies regardingjurisdictional conflicts or other issues that may arise is through memoranda of understanding or agreement. flicts or other issues that may arise is through memoranda of understanding or agreement-a written agreement between a military installation and various local entities, such as law enforcement agencies, child protective services, legal services, and family violence shelters.26 For example, a memorandum of understanding between the installation and a shelter could have provisions for the placement of abused spouses from base housing to a shelter and monetary compensation to the shelter.* Some common components of memoranda of understanding are to provide for the role of military police in arranging for civilian access and escort on the installation, the procedures for service of judicial process, and policies for sharing case information between military and civilian authorities. Memoranda of understanding should provide for the assignment of criminal and civil functions, the appointment of a military member to the local civilian task forces for their expertise related to the military community, and the use of services and shelters for battered military spouses. 28 Memoranda of understanding should encourage civilian reporting of spouse abuse incidents to military family advocacy staff as part of the procedure. Attorneys assisting victims should obtain a copy of the memoranda that help define local military and civilian jurisdiction, procedures, and resource agreements or encourage their development. III. The Military Response to Family Violence The Defense Department has established broad servicewide guidelines that govern family advocacy matters throughout the armed forces.29 The family advocacy program s stated objectives are to prevent abuse, to establish procedures for responding to allegations of abuse. and to direct the development of programs and activities that contribute to family life? The family advocacy program promotes early identification and intervention in cases of abuse, provides for rehabilitation and treatment programs, and cooperates with civilian authorities to deal with the problems related to prevention and treatrnenl31 The Defense Department directive instructs each of the armed services to establish a family advocacy committee and appoint a family advocacy officer at each installation. The committee is responsible for evaluating reports of spouse abuse and forming a case status determination of either substantiated, suspected, or unsubstantiated abuse.32 The committee recommends to a service member s commanding officer appropriate treatment for abusers Dep t of Def. Directive No , supt-a note 4, fl See, e.g., U.S. Marine Corps, supra note 5, app. F-la. * Id. fl F-lc. 28Zd. fl F-l, 2. 29Dep t of Def. Directive , supra note 4, fi oId , 4.2, Id. nfl 4.4, 4, Id. n Id. 54 C LEARINGHOUSE REVIEW 1 MAY-JUNE 2001

6 Fa&y Violence alld Militay./ustice IV. Policies and Procedures on Family Violence The Defense Department sets out procedures to advise abused spouses of the availability of emergency medical and social care, information on crime victim compensation, and programs within the comm~nity.~ Each military service s rules, regulations, or policies set out more specific procedures. A. Army Army regulation sets out the family advocacy program requirements for all Army installations, with the goal of preventing spouse abuse, protecting victims, and treating those affected.d5 The family advocacy program manager is responsible for developing community education and prevention programs, coordinating civilian and military resources, assessing the needs of families, and working with the installation commander to organize family advocacy program services.36 The family advocacy program manager works with the family advocacy committee and the case review committee, which comprises military and local community agency personnel, to diagnose, evaluate, and manage cases of abuse within the Army community. Local military treatment facilities or civilian community programs provide prevention, treatment, counseling, and medical services for victims and offenders. Victims often face-besides the need for personal safety-economic needs when dealing with family violence. The law requires the Defense Department to establish a program to pay monthly transitional compensation for dependents of an armed forces member whom civilian law enforcement authorities convict for dependent abuse offense or whom the armed forces administratively separate from active duty because of dependent abuse.37 Victims and their advocates need to be in contact with the family advoca-. cy personnel because committee personnel should be aware of base and community housing options for victims and of transitional payments, child support, and dependent allotment programs available to victims of family violence. Army family advocacy program policy requires that installations maintain strong relationships with civilian agencies to ensure that victims and offenders i receive the services they need.% The Army : maintains an automated central database that keeps track of child and spouse abuse cases. Every installation must report all suspected and substantiated cases of abuse to the central registry.39 The unit commander s role is a critical element of Army family advocacy prc+ gram policy and requires the commander to be familiar with rehabilitative procedures and disciplinary policies related to family violence.40 The commander s intervention options for contending with an abusive service member include legal options under the Uniform Code of Military Justice to impose punishment or appropriate treatment and rehabilitation.41 Only when soldiers perpetrate multiple incidents of abuse, or severely injure or even kill the victim, does the commander consider options beyond treatment, case monitoring, or compliance planning, including separation from the service or revoking pass privileges.42 Within the Army and throughout the armed forces, the commander decides whether to prosecute the service mem- 34 Id. at E Army Regulation , supra note 5, ch %Zd., ch. 1-7e U.S.C (2001); Army Regulation , supra nofe 5, app. F. jezd., ch Id., ch. S-1. 4oZd., chs. 2-3 to Id., chs. 1-7 b(9), U.S. Army Family Advocacy Program Spouse Abuse Manual, app. I (1!96), auathble ar MAY-JUNE JOURNAL OF POVERTY LAW AND POLICY 55

7 ber for the abuse.43 This authority can lead to tension between the commanders and family advocates when the primary concern of commanders is the continued functioning of the military unit while the family advocate s goal is to protect the safety of the victims. The abuser s commanding officer can be the most effective avenue to ending an abuser s violent behavior or can represent an almost insurmountable barrier to intervention. B. Navy and Marine Corps The Secretary of the Navy establishes the family advocacy rules and operating procedures for both the Navy and the Marine Corps.44 However, the Marine Corps has its own Marine Corps family advocacy program standard operating procedures.45 Again, these instructions emphasize family violence as an offense against military readiness, effectiveness, good order, and discipline of the service.46 Nevertheless, to commanding officers the Navy directive is more specific-requiring that the commander take prompt action to hold the service member accountable and take measures to protect the victim.47 The family advocacy officer is primarily responsible for managing the Navy s family advocacy program and focuses on prevention, identification and reporting, and intervention and treatment.48 The program s representatives submit the Navy s incident reports to the Navy central registry in Washington, D.C.49 Intervention and treatment in suspected abuse cases requires the Case Review Committee to recommend an appropriate response to identify cases df abuse.5o The committee must notify the service member s commander, who decides, at the commander s sole discretion, what action to take against the member.51 Intervention can include crisis intervention, emergency shelter, rehabilitation, treatment, or criminal prosecution.5 It may also include disciplinary or administrative sanctions, close coordination with civilian service providers, and physical and mental health treatment.53 The Marine Corps family advocacy program provides for the program s policies, procedures, and operation.j4 At the installation level, the program is a component of the family service center.jj The goal of the Marine Corps family advocacy program is to prevent domestic abuse, to intervene and protect victims, and to encourage commanders to hold offenders accountable for their actions through appropriate counseling and administrative and disciplinary action.j( A family advocacy program manager serves as the installation commander s expert concerning identification, treatment, and intervention for those matters pertaining to the program. 57 The Marine Corps family advocacy program involves the commanders from identification to the final disposition of the abuse case.58 Incident reports go to 43 Army Regulation , supra note 5, ch U.S. Navy, Family Advocacy Program, OPNAVINST A, ucuilahle ut h~tp://neds.nebt.daps.mil/directives/l752-2a.pdf. 45 U.S. Marine Corps, supra note U.S. Navy, supra note 5, n4a; U.S. Marine Corps, supra note 5, ch. 1, U.S. Navy, supra note 5, 1 4a. 48Zd., enc. 1, n zd. 1 5.e.(2). 5o Id. 51 Id. nn 5.e.C2H3). 52 rd. 1 5.e.(4)(a). 53 Id. fl 5.e.(4). 54 U.S. Marine Corps, srrpra note Id., ch. 2, fl Zd., ch. 1 fl Zd., ch. 2, fl ~. *Id., ch. 2, C LEARINGHOUSE REVIEW ( MAY- JU NE 2001

8 Fanlily Violence and Militairry Justice the Marine Corps central registry in Washington, D.C. s9 Some Marine Corps installations operate shelters for abused spouses and children. Installations that do not operate their own shelter often use local civilian shelters. In this case, the family advocacy program policy recommends that the command and the shelter establish a working relationship through a memorandum of understanding.60 C. Air Force The office of the surgeon general of the Air Force manages the Air Force s family advocacy program, and Air Force instruction establishes the program, along with program policies, procedures, and responsibilities. 61 The Air Force program has three components: outreach, family maltreatment intervention, and the exceptional family member program, which helps families with children having special needs.62 The goal of the Air Force family advocacy program is to enhance Air Force readiness by ensuring that family problems do not hinder the performance of military personnel in the Air Force. Proactive services are to identify, measure, and treat incidents of maltreatment.63 The Air Force policy is to intervene in incidents of alleged abuse through a family maltreatment case management team that assesses incidents of alleged abuse, recommends treatment, and reports incidents to the Air Force central registry.& Each Air Force base must have a family advocacy committee with the installation commander responsible for the com- mittee. The commander must ensure that the family advocacy program is effective and receiving the proper supp~rt.~s A social work officer on the installation serves as the family advocacy officer who has the everyday responsibility of over-. seeing the program s operations.66 D. Coast Guard The U.S. Coast Guard differs from the other armed services because it is a unit of the Department of Transportation, it is smaller in size, and the assignment locations for Coast Guard members are not typically on large military installations.67 Though under Department of Transportation regulations, the Coast Guard has established a family advocacy program pursuant to commandant instruction B, and the Coast Guard works closely with Defense Department family advocacy program personnel in the area of domestic violence.@ The Coast Guard personnel responsible for implementing the family advocacy program policies-the family program administrators-are the primary Coast Guard resource for all family violence incidents, and they are responsible to their respective Coast Guard family advocacy program for program guidance in family violence matters.69 The Coast Guard family advocacy program purpose is to educate, prevent, intervene, and retain productive Coast Guard members. The program evaluates and treats abusers, although nothing prohibits commanders from referring criminal matters to the appropriate authorities.70 In light of juris- 591d., app. Zd., ch. 2, (3)(c)(l). 61 U.S. Air Force, supra note d., ch. 2, n ch. 2, n d., ch. 2, fl , Zd., ch. 1, fl ch. 2, n Colin S. Gray, Keeping the Coast Guard A&at, 60 NAT L INT. 83 (Summer 2000), available at 6a U.S. Coast Guard, supra note 5, ~59 Id. n 6.b. OId. ljll 1, 6.d.l. MAY-JUNE JOURNAL OF POVERTY LAW AND POLICY 57

9 ramrry Vtolence and Military Justice dictional issues, local commanders are responsible for maintaining working relationships with civilian community agencies. * If the Coast Guard family advocacy program suspects or substantiates a case of domestic abuse, the commander can take any number of actions against the service member. If the victim s safety is a concern, the commander can issue a nocontact order or restrain the member.72 X. Summary Family violence victims with connections to the military face many of the same obstacles that civilian victims face. Victims and their civilian attorneys have an additional layer of unfamiliar military regulations and procedures to negotiate to obtain protection and security. Simply becoming familiar with the terminology and bureaucratic structures so ingrained in military culture is a task beyond many advocates with an overwhelming family violence crisis practice. Moreover, while advocates are focusing on the safety of the victim and the punishment of the batterer, military policies emphasize the interests of the military in maintaining order and safety within its ranks. A review of the regulations shows that the victim s safety and protection are not the primary concern of the policies, except to the extent that they affect the efficient functioning of the military unit. None of the policies emphasizes criminal accountability for abusers unless severe life-threatening abuse has occurred. In each military branch the key to batterer accountability and victim protection is the abuser s commanding officer, who is often the person responsible for abuse intervention. The policies also require that military installations work with and coordinate services with local community family violence advocates. To represent and assist adequately those domestic violence victims who have military interests, the outside civilian lawyer must be able to understand and use both the governing regulations and the operational procedures of the abuser s local military installation. As in civilian cases, effective protection and safety for victims require the coordinated efforts of the community to provide victim-focused crisis intervention, support services to the victim, and batterer accountability. l Id. n Id. 1 7.b C LEARINGHOUSE REVIEW 1 MAY- JUNE 2001