Legislation changes UCMJ for victims of sexual assault

| January 8, 2015 | 1 Comment


Sweeping changes to the Manual for Courts-Martial have been brought about by the National Defense Authorization Act for fiscal year 2014, signed Dec. 26, 2013, according to an expert in the Army's Office of the Judge Advocate General.

Sweeping changes to the Manual for Courts-Martial have been brought about by the National Defense Authorization Act for fiscal year 2014, signed Dec. 26, 2013, according to an expert in the Army’s Office of the Judge Advocate General.

By David Vergun
Army News Service

WASHINGTON — The fiscal year 2015 National Defense Authorization Act, signed into law last month, significantly changes the Uniform Code of Military Justice in cases pertaining to rape and sexual assault.

All of the UCMJ amendments contained in the NDAA pertain to investigating and prosecuting sexual assault crimes and victim care, said Lt. Col. John Kiel Jr., chief, Policy Branch, Criminal Law Division, Office of the Judge Advocate General.

A big change involves Article 32 preliminary hearings, he said, then gave some background.

The purpose of an Article 32 investigation was at one time “to provide discovery to the defense,” he said. Then, the FY14 NDAA directed that the purpose of an Article 32 be “to determine whether probable cause exists to believe that an offense under the UCMJ has been committed and that the accused committed it.”

Article 32 hearings are now modeled after preliminary hearings in the federal criminal system, he said. The FY15 NDAA requires that the preliminary hearing be conducted by a preliminary hearing officer who is a judge advocate and that qualifying victims, as defined in the statute, have a right not to testify at the hearing should they so choose. This right applies to both military and civilian victims.


Special Victims’ Counsel

The FY15 NDAA made three additional modifications.

First, Congress directed that the military rules of evidence be amended to reflect that wherever a victim has a right to be heard, the victim may exercise that right through his or her counsel, he said.

Second, Congress directed the service secretaries to publish procedures to ensure that special victims’ counsel receive adequate notice of the scheduling of hearings, trials and other courts-martial proceedings.

Third, victims may now petition the service court of criminal appeals for a writ of mandamus in cases where the victim believes the military judge erred in a ruling pertaining to rape shield evidence under Military Rule of Evidence 412 or violating the psychotherapist-patient privilege under MRE 513.

A writ of mandamus is an order from a superior court to a subordinate government court to do or refrain from doing something.


Convening Authority

Congress also created a system in the FY14 NDAA whereby any decision not to refer a sexual assault offense to court-martial by a convening authority will be reviewed by a superior competent authority, he said. In the case where the convening authority and his or her staff judge advocate disagree about the referral decision, the case will then be sent to the service secretary for review. In the case where both the convening authority and the staff judge advocate agree not to refer, the case will be reviewed by the next higher convening authority.

The FY15 NDAA created an additional review mechanism, Kiel said. It mandates that in any case where a convening authority decides not to refer a sex assault offense, the chief prosecutor of the service may request that the service secretary review it, and if such a request is made, the secretary must review it. The judge advocate general of each service may designate a chief prosecutor for purposes of this provision if such a position does not already exist within their respective service.


Care for victims

Two other changes in the FY15 NDAA apply to the treatment and care of victims of sex assault.

The first mandates that victims of sexual assault crimes be given an opportunity to express a preference as to whether their case is tried by the military or by the local prosecutor, Kiel said. If the victim chooses the latter, the convening authority must ensure that the local prosecutor is made aware of the victim’s preference, understanding that the preference is not binding on the prosecutor. The convening authority must inform the victim about the prosecutor’s decision to prosecute or not.

Second, he said, Congress recognized that in the past, some victims of sexual assault may have been discharged from the service and given a discharge less than honorable. The FY15 NDAA directs that the service secretaries develop a confidential review process utilizing boards for the correction of military records to review the characterization of the discharge or separation of any individual who wants to challenge the characterization of their discharge on the grounds that it was adversely affected by the individual being the victim of a sex-related offense.

Finally, there are some congressionally appointed panels and a panel appointed by the secretary of Defense to study various aspects of sexual assault in the military and the military justice system in general, Kiel said.

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