New Ideas to Prevent Sexual Assault in the Military

On 23 January 2021, Secretary of Defense Lloyd Austin requested subordinate commanders provide “novel” and “creative” approaches to sexual assault prevention and response. Almost a decade before, in 2012, the 6th Marine Corps Recruiting District (MCD) had already implemented a novel and creative approach to sexual assault prevention: Operation Restore Vigilance (RV). The 6th MCD commanding officer drew inspiration from Panama Canal Zone disease eradication in the early 1900s and applied a similar “systems approach” to eradicating sexual assault. The 6th MCD approach, while likely not implementable across the entire force, does offer several lessons for commanders seeking to fulfill the Secretary of Defense’s intent.

In large part, RV’s effectiveness rested on how it synergized many proven sexual assault prevention strategies. The novel and creative aspect of RV was the second line of effort—internal control measures. These aimed to prevent or eliminate precursor conditions that highly correlate with recruiter sexual misconduct, most notably, victim isolation and grooming. Some prohibitions included banning recruiter/applicant private meetings and personal text messaging—in other words, the order criminalized certain behaviors with the aim of depriving recruiters the opportunity to set conditions for sexual misconduct. This approach proved effective. Prior to enacting internal control measures, the 6th MCD averaged ten substantiated instances of recruiter-on-applicant sexual misconduct per year. The year after enactment, there were no substantiated incidents. However, nine recruiters were relieved for violating RV’s proscriptions on precursor conduct.

Restore Vigilance produced results. Specifically targeting isolation by using the “two-person rule,” RV prohibited mixed-gender one-on-one recruiter/applicant interaction. Since a witness was always present, this prohibition deprived recruiters of the opportunity to isolate potential victims. Second, the 6th MCD recognized that “[t]exting is an unsupervised, informal, and dangerous mode of communication that can easily be misunderstood and manipulated by predators.” Restore Vigilance required all recruiter/applicant communications be conducted on official government devices. Since government devices are subject to supervision, recruiters were deprived of the primary means to groom future victims. After training and education on these prohibitions, policy violators were held administratively or judicially accountable. The results validated the approach. The commanding officer relieved nine Marines for orders violations (gateway crimes) and the command eradicated recruiter/applicant sexual misconduct—the ultimate goal.

Beyond the Recruiting Environment

Of course, commanders do not have unfettered power to regulate otherwise noncriminal conduct by directive. To be lawful, an order must relate to military duty. This nexus requirement means an order must be reasonably necessary to accomplish a military mission; required to safeguard or promote the morale, discipline, and usefulness of members of a unit; or provide for the maintenance of good order in the armed forces. An order can regulate private activity if it does not impose an unfair limitation on a personal right, is not overly broad, and is not arbitrary and capricious.¹

The unique mission of recruiting affords the commander more latitude in imposing certain restrictions that would be overly broad or unfair in another context (or command). The narrowly tailored prohibitions in RV (two-person rule and private-device prohibition) are vital to safeguard applicants, preserve good order and discipline, and ensure mission accomplishment. Likewise, while a prohibition on non-workplace private social interaction generally would be overly broad, the recruiting mission and special status of the parties (recruiter/applicant) suffice to both narrowly tailor the proscription and provide the required military nexus.

Nevertheless, Restore Vigilance’s internal control measures do offer possible approaches to combating sexual assault that, with the correct tools, could be applied across the force. One potentially effective approach would be to criminalize identifiable precursor behaviors under Article 134 of the Uniformed Code of Military Justice. If a service member takes actions with the specific intent to gratify sexual desire and those actions are: 1) not reasonable and 2) prejudicial to good order and discipline, service discrediting, or both, an appropriate amount of criminal liability should attach.

An inappropriate text chain or an aggressive course of conduct used to isolate victims could be criminalized through a sexual assault lens. If these types of behavior are prohibited via criminal code rather than a commander’s order, the over-breadth, military nexus, and special status considerations tied to the legality of military orders become moot. Likewise, providing alcohol to minors, lying to officials, violating barracks policies, underage drinking, repeated unwelcome advances—in fact, all courses of conduct undertaken with the specific intent to obtain sexual gratification—could subject perpetrators to an appropriate amount of criminal risk if those actions fall below community standards of reasonableness.

The internal control measures of Restore Vigilance are not a panacea. Their application in a broader context could be a regulatory over-reach, attempting to regulate otherwise non-criminal and constitutionally protected behavior. However, elements of RV do provide a proof of concept for an effective, novel, and creative approach to combating military sexual assault across the total force.