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69 Stan. L. Rev. Online 1 (2016-2017)

handle is hein.journals/slro69 and id is 1 raw text is: ESSAY Sexual Assault as a Law of War Violation and U.S. Service Members' Duty to Report Chris Jenks & Jay Morse Introduction This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces (ASF) against Afghan nationals to the U.S. military.1 The answer requires applying a longstanding Department of Defense (DOD) policy for reporting law of war (LOW) violations and hinges on when sexual assault can be considered such a violation. Although recent attention on this topic has brought much- needed visibility to sexual assault in conflict zones, the overbroad assertions of the media and the military have unfortunately fostered more confusion than clarity. Specifically, the New York Times has incorrectly implied that U.S. service members are always required to report alleged ASF sexual assaults,2 while the U.S. military has wrongfully counterclaimed that the offenses would be a matter of domestic Afghan criminal law.3 This Essay does not attempt to resolve the debate about whether there is a reporting obligation, but rather suggests the framework by which the issue should be considered. To do so, this Essay first details the 2015 news reports of ASF sexual assaults and the conflicting claims by the U.S. media and military on Chris Jenks is an Assistant Professor of Law and the Criminal Justice Clinic Director at the SMU Dedman School of Law in Dallas, Texas. Jay Morse retired from the U.S. Army as a Lieutenant Colonel, having served first as an aviation officer and then as judge advocate. 1. Readers may wonder why reporting would even be needed to ensure that higher levels of the U.S. military are aware of the alleged sexual assaults. One reason is because U.S. military units in Afghanistan are widely dispersed across twenty-five of Afghanistan's thirty-four provinces. 2. Editorial, Ignoring Sexual Abuse in Afghanistan, N.Y. TIMES (Sept. 21, 2015), http://nyti.ms/KvsOQO (claiming that both the Geneva Conventions and U.S. federal law impose an obligation not simply to report but also to investigate and prosecute law of war violations, including any sexual abuse of people taken into custody). 3. Id. (quoting Col. Brian Tribus, spokesperson for the U.S. military in Afghanistan). 1

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