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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?