Featured, Features, frontpage, Online — January 15, 2015 at 3:40 pm

Restricted Reporting on California Military Installations: The Unnecessary and Unwise State Law Exception

Christopher J. Markham

I. Introduction

Sexual assault in the military has understandably garnered an immense amount of public attention over the last several years. The statistics paint an ugly picture. While the estimates vary widely, Department of Defense surveys suggest that, from 2006 to 2012, between 19,000 and 34,000 members of the armed forces were the victims of “unwanted sexual contact[i] each year.[ii] Perhaps more troubling is the number of incidents that go unreported. For example, Department of Defense records show that fewer than 2,949 members of the armed forces reported the occurrence of unwanted sexual contact in fiscal year 2012. Based on the estimated number of annual victims (i.e., between 19,000 and 34,000), this represents a dishearteningly low reporting rate of between eight and fifteen percent.

In an attempt to address this issue of underreporting, the military has adopted a policy that provides confidentiality for victims of sexual assault who come forward. This policy, known as restricted reporting, allows sexual assault victims to speak with medical professionals, victim advocates, and chaplains (among others) without notifying law enforcement and triggering an official investigation. Restricted reporting not only allows sexual assault victims to get the support they need, but it also establishes a record of the crime should any victim decide to notify law enforcement in the future.

One roadblock to the effective implementation of the restricted reporting policy is conflicting state laws. California in particular, home to a disproportionately large number of military personnel when compared to other states, has a mandatory reporting policy for health care practitioners. California’s mandatory reporting law requires that health care practitioners working in California submit a report to law enforcement any time they reasonably believe their patient has been the victim of a crime. While mandatory reporting may be a well-intentioned effort to ensure law enforcement is notified of criminal activity, it does force sexual assault victims to make a disturbing choice. At the very moment when they are most vulnerable—in the immediate aftermath of a sexual assault—victims must choose between their healthcare needs and their privacy. This creates a dangerous incentive for victims to deny themselves medical and psychological treatment because they are not ready to speak about their experience with law enforcement.

Despite the fact that mandatory reporting is fundamentally incompatible with restricted reporting, the Department of Defense created an exemption to its restricted reporting policy to allow for the application of state mandatory reporting laws on federal lands. California medical practitioners working on federal lands therefore have no choice but to act as mandatory reporters. The result is that, for almost a decade, military victims of sexual assault seeking care from California medical practitioners have been denied the option of submitting a restricted report­ that is available to service members everywhere else.[iii]

This article takes the view that such an accommodation to California law is both unwise as a matter of policy and unnecessary as a matter of law. A review of the history and current application of restricted reporting reveals that the policy is an effective tool in helping sexual assault victims receive the medical and psychological support they need and can also be useful in any subsequent investigation and prosecution of the crime. Furthermore, as a matter of law, the Department of Defense is not required to create exemptions to its policies in order to align the laws applicable on a particular military installation with the law of the state in which that installations is located. Therefore, either Congress or the Department of Defense, or both, can and should act in order to ensure that the full benefits of a restricted reporting option are available to all service members, including those located in California.

II. History and Current Application of the Restricted Reporting Policy

Department of Defense efforts to provide sexual assault victims with a confidential reporting option began approximately a decade ago. In 2004, the Denver Post reported the details of several poorly handled sexual assault investigations involving female soldiers serving in Iraq. In response, the Department of Defense created the “Care for Victims of Sexual Assault Task Force” to review the Department of Defense’s sexual assault reporting and response procedures. Among its many findings, the Task Force placed particular emphasis on the need for privacy and confidentiality for sexual assault victims:

“Currently within DoD, there is not a way for victims of sexual assault to get military sponsored medical or mental health treatment without reporting the incident and triggering the investigative and judicial process. . . . The perceived lack of privacy and confidentiality within DoD is thought by many to be one of the most significant barriers to reporting by military sexual assault victims.”

In light of this finding, the Task Force recommended that the Department of Defense “[e]stablish avenues . . . to increase privacy and provide confidential disclosure for sexual assault victims.” Shortly thereafter, Congress shaped this recommendation into law in the National Defense Authorization Act for Fiscal Year 2005, which mandated that the Department of Defense “develop a comprehensive policy” with respect to “[c]onfidential reporting.”

The policy that the Department of Defense created was fairly straightforward. Sexual assault victims were given two options. The first option, labeled unrestricted reporting, acts as a traditional criminal report where a victim alleges a crime has been committed against him or her and law enforcement subsequently investigates that allegation. By contrast, the second option, labeled restricted reporting, allows victims to report a crime without triggering an investigation by law enforcement. This provides sexual assault victims “access to medical care, counseling and victim advocacy, without initiating the investigative process.”

Since restricted reporting was first implemented in 2005, the policy has gone largely unchanged and has been codified in statute as well as Department of Defense regulations.[iv] While by no means a panacea in addressing sexual assault in the military, the data suggests that restricted reporting is providing victims access to medical care and counseling that they may not have obtained if an unrestricted report was their only option. From 2007 through 2013, there have been a total of 6,536 restricted reports. The annual number of reports has increased every year with a record high 1501 reports coming in fiscal year 2013 (the most recent year for which data is available). As research shows that victims’ reporting of a crime is their primary link to receiving medical support and counseling, and that victims are often reluctant to come forward with an unrestricted report, many of those 6,536 victims may never have received any support had the restricted reporting option not been available.

Beyond support for sexual assault victims, the data suggests that restricted reporting also benefits law enforcement. Each year approximately fifteen percent of all restricted reports are later converted into unrestricted reports. Absent the restricted reporting option, some of these victims may never have come forward in the first place.[v] Other victims, perhaps initially uncomfortable with the idea telling their story to law enforcement, may have simply waited much longer to report the crime. To the extent that restricted reporting encourages victims to come forward and to do so as early as possible, the odds of a successful investigation and prosecution increase. An early report allows victims to give statements and enables medical professionals to collect physical evidence, which may deteriorate or become unavailable with the passage of time. An early report can also be useful during trial when defense counsel inevitably raises questions regarding the veracity of the victim’s claims.[vi]

III. California Mandatory Reporting and the Department of Defense Exemption

In stark contrast to the Department of Defense’s restricted reporting policy, California has adopted a mandatory reporting law. Section 11160 of the California Penal Code mandates that health care practitioners report to law enforcement any time he or she “knows or reasonably suspects” a patient is “suffering from any wound or other physical injury” which is “the result of assaultive or abusive conduct.” In defining “assaultive or abusive conduct,” § 11160 includes various offenses that fall under the military’s definition of sexual assault.[vii]

The information required by these reports can be intrusive, including detailed descriptions of the “character and extent” of the victim’s injuries as well as the identity of the perpetrator of the crime.[viii] Victims have no choice as to whether or when to release that information to law enforcement—California law mandates that health care practitioners submit a telephonic report “as soon as practicably possible” and a written report within two working days. Medical practitioners’ failure to create and deliver a report is considered a misdemeanor, carrying a punishment of up to six months in prison and a fine of up to $1,000. Furthermore, the failure to report may constitute grounds for suspension of a medical license[ix] and a civil cause of action.[x]

These laws have created a situation where medical practitioners working on military installations in California are wary of complying with the Department of Defense restricted reporting policy. Unfortunately, instead of simply forcing medical practitioners to comply with federal regulations, both Congress and the Department of Defense have allowed for an exemption. While Congress required that the Department of Defense develop a restricted reporting policy, Congress allowed the policy to be implemented “[u]nder regulations prescribed by the Secretary of Defense.” The Department of Defense has used this discretionary language to consistently carve out an exception to the restricting reporting policy for whenever creating a restricted report would violate state law (as is the case in California).[xi]

This combination of California’s mandatory reporting law, the Department of Defense’s exemption, and Congressional acquiescence, has had a very real impact on both sexual assault victims stationed in California as well as the health care practitioners serving them. Several bases have put up this (or similar) disclaimers on their Sexual Assault Prevention and Response Program websites:

“IF YOU ARE LOCATED ANYWHERE IN THE STATE OF CALIFORNIA, PLEASE BE SURE TO SPEAK TO A UNIFORMED VICTIM ADVOCATE OR VICTIM ADVOCATE FOR A RESTRICTED REPORT BEFORE YOU CONTACT MEDICAL OR LAW ENFORCEMENT. CALIFORNIA IS A MANDATED REPORTING STATE OF SEXUAL ASSAULT FOR LAW ENFORCEMENT PERSONNEL AND HEALTH CARE PRACTIONERS TO INCLUDE MILITARY TREATMENT FACILITIES.”

As the disclaimer suggests, the Department of Defense’s state law exemption, when combined with California’s mandatory reporting requirements, has essentially nullified the restricted reporting policy for medical practitioners working at federal facilities in California.

IV. Rescinding the State Law Exemption

For those who believe (perhaps after reading Sections II and III) that the Department of Defense’s accommodation to California’s mandatory reporting law is unwise as a matter of policy, the question becomes how to rescind that policy? As the subsequent section will show, the current state of the case law likely constrains the courts’ ability to act. On the other hand, both the Department of Defense and the Congress are entirely capable of rescinding the state law exemption, with Congress being the more likely candidate for action.

A. The Courts

The courts likely do not have a basis for striking down California’s mandatory reporting law. Mandatory reporting requirements do interfere with sexual assault victims’ privacy and liberty interests, broadly protected under substantive due process.[xii] For instance, mandatory reporting degrades a victim’s privacy by requiring medical practitioners to turn over sensitive patient information to law enforcement even when the patient requests that such information remain confidential. Furthermore, mandatory reporting in essence conditions a sexual assault victim’s access to heath care on their willingness to initiate a criminal investigation. To the extent that some sexual assault victims may forgo medical treatment in order to avoid reporting their experience to law enforcement, the law infringes on a sexual assault victim’s liberty to access medical care.

But even with these interests in mind, a court operating within the current state of constitutional case law would likely refrain from invalidating California’s mandatory reporting requirements because California has a legitimate interest in ensuring that crimes are properly reported and investigated. And as the Supreme Court has explained time and again, an individual’s privacy and liberty interests related to seeking medical treatment do not trump all valid state interests.

A case that is particularly on point is Whalen v. Roe, in which the Supreme Court upheld a state law that required medical practitioners writing prescriptions to report to government agencies their patients’ name, address, age, and dosage. As the Court explained, “[r]equirements that disclosure of private medical information, which are often made to doctors, . . be made to representatives of the state having responsibility for the health of the community does not automatically amount to an impermissible invasion of privacy.” The Court made this ruling despite acknowledging that, “[u]nquestionably, some individuals’ concern for their own privacy may lead them to avoid or to postpone needed medical attention.” This, along with other similar holdings,[xiii] create the precedential environment within which California’s mandatory reporting law has consistently withstood judicial scrutiny.[xiv]

B. Congress and the Executive

Both the Congress and the Executive Branch through the Department of Defense are fully capable of eliminating mandatory reporting on military installations. State law by its own force typically does not apply on military installations or facilities. This is because most military installations in the United States are located on federal lands over which Congress exercises exclusive jurisdiction.[xv] State law will therefore only apply where Congress (or a duly authorized executive agency) takes affirmative steps to adopt state law.[xvi]

Furthermore, even if a military installation is subject to some form of concurrent jurisdiction such that state law may apply of its own force,[xvii] the Constitution’s Supremacy Clause demands that all constitutionally permissible federal laws prevail any time a conflict with state law arises.[xviii] Congress undoubtedly has the authority to employ medical practitioners to service the armed forces and enact regulations governing their practice on federal lands (e.g., creating the restricted reporting program). Therefore, California’s mandatory reporting law can only supersede the Department of Defense’s restricted reporting policy to the extent permitted by Congress or the Department of Defense.

This means that the Department of Defense could eliminate mandatory reporting by simply rescinding the state law exemption it created. The reasons behind its decision not to do so have not been made clear publicly. Perhaps there are federalism concerns.[xix] Or perhaps there are concerns about forcing wary medical practitioners to violate state law even on federal lands or facilities where that state law would not apply. What is clear is that, in the absence of Department of Defense action, Congress is left as the sole body to remedy this situation.

Congress almost took this step in the National Defense Authorization Act of 2014. Specifically addressing restricted reporting, House Resolution 1960 (the version drafted by the House of Representatives) stated in no uncertain terms that “each member of the Armed Forces” has the right to “make a restricted or unrestricted report of a sex-based criminal act. Victims will have access to vital services whether they pursue an investigation or not.”[xx] Unlike previous legislation addressing restricted reporting, this language would not provide statutory authority for the Department of Defense to create state law exemptions to the restricted reporting policy. The language is simply too clear and definitive to provide any interpretive leeway,[xxi] especially when viewed in the context of the statute as a whole, which was constructed in large part to increase protections for sexual assault victims.[xxii]

Unfortunately for military personnel in California, this language was stripped from the bill before ultimate passage of the National Defense Authorization Act of 2014.[xxiii] However, as sexual assault in the military continues to be a hot-button issue, and as a new National Defense Authorization Act is passed annually, restricted reporting is likely to come up again. If Congress were to pass similar language to House Resolution 1960 in the future, the state law exemption would cease to exist.

V. Concluding Remarks

Both Congress and the Department of Defense have taken productive steps to respond to the underreporting of sexual assault within the military. One of these steps was the creation of the restricted reporting policy. By and large, the restricted reporting policy has been a success. Between 2007 and 2013, the number of restricted reports has increased every year, for a total of 6,536 restricted reports created during that period. Those 6,536 victims were not forced to potentially forgo medical, legal, and other forms of support in order to avoid discussing their experience with law enforcement. Beyond the benefit to victims, law enforcement has also benefited, as approximately fifteen percent of those victims later created an unrestricted report, allowing for the investigation and prosecution of the crime.

Certain obstacles remain to the full implementation of the restricted reporting policy, most notably California’s mandatory reporting law. However, while California has the authority to enact a mandatory reporting law, the federal government is under no obligation to enforce that law on federal lands or facilities. That mandatory reporting is enforced on California military installations is the result of a state law exemption to the restricted reporting policy created by the Department of Defense and sustained through Congressional acquiescence. As the state law exemption is a creature of regulation and by no means required as a matter of law, there is nothing stopping either Congress or the Department of Defense from effecting its repeal.

In repealing the state law exemption, certain additional obstacles to victims’ access to restricted reporting will inevitably come up. For example, medical professionals may understandably continue to be wary of ignoring state law. And victims may remain unable to submit a restricted report when they seek medical attention at a facility not controlled by the federal government. However, such issues can be addressed through education campaigns, which make clear to both medical practitioners and military personnel the facilities at which state law does not apply and the restricted reporting option is therefore available. Dissemination of this information, when combined with the rescinding of the state law exemption, will ensure that all military victims of sexual assault can benefit from the already successful restricted reporting policy.

 

Christopher J. Markham is a Captain, United States Marine Corps; Military Prosecutor, MCAS Cherry Point; J.D., Columbia Law School. This article represents the opinions of the author in his personal capacity.

 

[i] “[Unwanted Sexual Contact] involves intentional sexual contact against a person’s will or occurring when the person did not or could not consent. The term describes completed and attempted oral, anal, and vaginal penetration with any body part or object, and the unwanted touching of genitalia and other sexually related areas of the body.” Care for Victims of Sexual Assault Task Force, Dep’t of Def. Fiscal Year 2012 Annual Report on Sexual Assault in the Military 12 (Apr. 15, 2013) [hereinafter DoD Sexual Assault Report FY12].

[ii] Id. at 13. It should be noted that the military is by no means the only institution having difficulty addressing the issue of sexual assault. See, e.g., Jennifer Steinhauer and David S. Joachim, 55 Colleges Named in Federal Inquiry Into Handling of Sexual Assault Cases, N.Y Times, May 2, 2014, at A15. Furthermore, some have raised legitimate concerns about whether the statistics cited in the DoD Sexual Assault Report FY12 accurately reflect the prevalence of sexual assault in the military. See, e.g., Lindsay A. Rodman, The Pentagon’s Bad Math on Sexual Assault, Wall St. J., May 19, 2013, available at http://online.wsj.com/news/articles/SB10001424127887323582904578484941173658754.

[iii] California’s mandatory reporting laws also affect victims in other states (particularly Arizona) when the nearest military treatment facility is in California. Care for Victims of Sexual Assault Task Force, Dep’t of Def. Fiscal Year 2013 Annual Report on Sexual Assault in the Military 112 n.94 (May 1, 2014) [hereinafter DoD Sexual Assault Report FY13].

[iv] See, e.g., 10 U.S.C. 1565b(b) (2012) (“Under regulations prescribed by the Secretary of Defense, a member of the armed forces, or a dependent of a member, who is the victim of a sexual assault may elect to confidentially disclose the details of the assault to an individual specified in paragraph (2) and receive medical treatment, legal assistance under section 1044 of this title, or counseling, without initiating an official investigation of the allegations.”); 32 C.F.R. § 105.8(a)(2) (2013) (“Restricted Reporting allows Service members and military dependents who are adult sexual assault victims to confidentially disclose the assault to specified individuals (SARC, SAPR VA, or healthcare personnel) and receive healthcare treatment and the assignment of a SARC and SAPR VA.”).

[v] See, e.g., Sexual Assault in the Military: Hearing Before the Subcomm. on National Security and Foreign Affairs of the H. Comm. on Government Reform, 110th Cong. 44 (2008) (statement of Kay Whitley, Director, Department of Defense Sexual Assault and Response Office) (“Since June 2005, we have had more than 1,800 restrictive reports, and that tells me that is 1,800 people that would not have come forward otherwise.”).

[vi] While it is not uncommon for victims to wait an extended period of time to report the occurrence of a sexual assault, defense counsel will commonly raise the following question during trial: if this really happened why would anyone wait so long to report it? An early restricted report defeats that line of questioning before it can begin. Defense counsel may also allege that a victim has developed some motive to fabricate the incident—for example, that the alleged assailant recently ended a relationship with the victim and the victim wants revenge, or that the victim was having an affair with the alleged assailant and, upon the affair becoming public, the victim does not want to admit the affair was consensual. In these situations, an early restricted report can be used as an effective piece of rebuttal evidence where the victim made the report before the supposed motive to fabricate existed. See M.R.E. 801(d)(1)(B) (A prior statement by a witness may be used to “rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.”).

[vii] Compare id. § 11160(d)(6) (“Assault with intent to commit mayhem, rape, sodomy, or oral copulation”), 11160(d)(9) (“Sexual battery”), 11160(d)(14) (“Rape”), 11160(d)(15) (“Spousal rape”), 11160(d)(19) (“Sodomy”), 11160(d)(21) (“Oral copulation”), and 11160(d)(22) (“Sexual penetration”), with UCMJ art. 120(a) (“Rape”), 120(b) (“Sexual assault”), 120(c) (“Aggravated sexual contact”), and 120(d) (“Abusive sexual contact”).

[viii] Cal. Penal Code § 11160(b)(4)(A)–(D).

[ix] See Cal. Bus. & Prof. Code § 2236(a) (“The conviction of any offense substantially related to the qualifications, functions, or duties of a physician and surgeon constitutes unprofessional conduct within the meaning of this chapter.”); see also id. § 2227 (discussing the process of revoking a California medical license).

[x] See, e.g., Landeros v. Flood, 17 Cal. 3d 399, 413 (1976) (discussing the “presumption that by omitting to report plaintiff’s injuries to the authorities as required by law, defendants failed to exercise due care”).

[xi] 32 C.F.R. § 105.8(a)(7) (2013) (“[I]t may not be possible to maintain the report as a Restricted Report. To the extent possible, DoD will honor the Restricted Report; however, sexual assault victims need to be aware that their Restricted Report is not guaranteed due to circumstances surrounding the independent investigation and requirements of individual state laws.”); id. § 105.8(a)(2) (“Restricted Reporting may not remain an option in a jurisdiction that requires mandatory reporting, or if a victim first reports to a civilian facility or civilian authority, which will vary by state, territory, and oversees agreements.”).

[xii] See, e.g., Paul v. Davis, 424 U.S. 693, 712–13 (1976) (explaining how the “‘right of privacy’ cases, while defying categorical description, deal general with substantive aspects of the Fourteenth Amendment”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (reaffirming the substantive force of the liberty protected by the Due Process Clause, particularly in the areas of “marriage, procreation, contraception, family relationships, child rearing, and education”); Lawrence v. Texas, 539 U.S. 558 (2003) (discussing the “substantive reach of liberty under the Due Process Clause”).

[xiii] See, e.g., Casey, 505 U.S. at 874 (“Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”).

[xiv] While this author was unable to find a challenge to California’s mandatory reporting law on the basis that it violates a victim’s constitutional rights to privacy or liberty, the law has been upheld in various other contexts. See, e.g., People v. Younghanz, 156 Cal. App. 3d 811, 816 (1984) (holding that the mandatory reporting of child abuse by a child-abuser’s psychotherapist did not infringe on the child-abuser’s constitutional right to privacy in seeking medical treatment, emphasizing that “[t[he right to seek a particular form of medical treatment as a cure for one’s illness . . . has not been recognized as a fundamental right in California”); Adams v. Albertson, 2012 WL 440465 (N.D. Cal. 2012) (holding that § 11160 does not violate HIPAA regulations because “HIPAA regulations expressly permit a physician to report suspicion of domestic violence to the extent required by law”); Comstock v. Aber, 212 Cal. App. 4th 931 (2012) (holding that California’s anti-SLAPP statute forbids the use of a mandatory report as the basis for a claim of defamation or intentional infliction of emotional distress); People v. Gonzales, 182 Cal. App. 2d 276 (1960) (holding that a hospital’s compliance with § 11160 did not constitute an unlawful search under the Fourth Amendment).

[xv] See U.S. Const. art. I, § 8, cl. 17 (granting Congress the power of “exclusive legislation” over federal lands); Paul v. U.S., 371 U.S. 245, 262 (1963) (“[T]he grant of ‘exclusive’ legislative power to Congress over enclaves that meet the requirements of art. I, § 8, cl. 17, by its own weight, bars state regulation without specific congressional action.”).

[xvi] Save Our NTC, Inc. v. City of San Diego, 105 Cal. App. 4th 285, 293 (2003) (“Exclusive jurisdiction once acquired by the United States over federal areas remains except as modified by statute.”); Taylor v. Lockheed Martin Corp., 78 Cal. App. 4th 472, 481–83 (2000) (“State law which did not exist at the time of cession will also extend to the enclave when the state regulation has been expressly permitted by Congress.”) (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 & fn. 1 (1988)).

[xvii] Military installations are at times subject to concurrent jurisdiction of the state and federal governments. See, e.g., James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99 (1940) (“The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred.”); United States v. Corey, 232 F.3d 1166, 1180 (9th Cir. 2000) (“Two sovereignties may exercise concurrent jurisdiction when their relationship is regulated by law. In the United States, the Constitution permits the state and federal governments to exercise concurrent jurisdiction without undue interference.”).

[xviii] M’Culloch v. State, 17 U.S. 316, 436 (1819) (“[T]he states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.”); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 180 (1988) (“It is well settled that activities on federal installations are shielded by the Supremacy Clause from direct regulation unless Congress provides ‘clear and unambiguous’ authorization for such regulation.”).

[xix] For example, Executive Order 13132 mandates that executive agencies take federalism consideration into account when promulgating regulations and creates specific requirements for regulations that would displace state law. Exec. Order No. 13132, 64 Fed. Reg. 43255 (Aug. 4, 1999).

[xx] National Defense Authorization Act for Fiscal Year 2014, H.R. 1960, 113th Cong. § 530A(b)(3)–(4) (2013).

[xxi] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (“If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”).

[xxii] See, e.g., H.R. 1960, supra note xx, § 530A(b)(1)–(4) (describing various victims’ rights); id. § 1044e(a) (providing victims with a “Victims’ Counsel”).

[xxiii] See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66, 127 Stat. 672 (2013) (omitting section 530A); see also H. Comm. on Armed Services, 113th Cong., Legislative Text and Joint Explanatory Statement to Accompany Pub. L. 113–66 (Comm. Print 2013) (“The House bill contained a provision (sec. 530A) that would require the Secretary of Defense to ensure that all service members understand and comply with specified rights and responsibilities. The Senate committee-reported bill contained no similar provision. The agreement does not include this provision.”).

 

2 Comments

  1. Hello Chris,
    This is Mrs.Hanley, Ryan’s mom. It’s been a long time since BB&N days. Ryan shared your published article on “Restricted Reporting” with me. A serious issue indeed and your report is very well done. Congratulations to you on your success in the military and legal arenas.

    Mary Ellen Hanley

  2. Agreed, good report on a serious issue.

    But, it is an issue which does not only affect military victims in Califonia. While you rightly focus on California’s requirements given their scope and impact, there are other states with similar requirements which might impact a military victim’s choice of restricted reporting, depending on the victim’s injuries or the means/instrumentality by which the assault is committed, for example.

    See generally, http://www.evawintl.org/images/uploads/NDAA_Mandatory%20Reporting%20Compilation_2010.pdf

    In pratice, it seems to me the potential impact of mandated reporting has largely been mitigated, thanks to the efforts of efforts of military and local law enforcement authorities. Although they are not required to do so, I find most local law enforcement authorities will defer to the military. And, most local jurisdictions simply do not have the resources to investigate and prosecute cases in which the victims have no interest in cooperating with law enforcement.

    Personally, I’d like to see some analysis of whether your proposal that the President or the Congress pre-empt the various states’ mandated reporting requirements is actually feasible as a matter of law or policy.

    Given that most mandated reported requirements appear to be linked to state licensing requirements for different health care practitioners and that professional licensiing matters have been traditionally reserved to the states’ under the 10th Amendment, it seems any federal “repeal” of those requirements could be subject to a Constitutional challenge or, at least, give rise to federal-state policy conflict which would ultimately serve no one’s interests.

    Then, as you note, there is the matter of whether health care practitioners in the military would feel secure in ignoring state reporting requirements, since non-compliance can subject them to criminal prosecution as well as civil sanctions. (Note there is no independent “federal” or “military” license to practice; the provisions of 10 U.S.C. 1094 simply make any state license “portable.”)

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