WASHINGTON — The National Defense Authorization Act, passed last month, requires sweeping changes to the Uniform Code of Military Justice, particularly in cases of rape and sexual assault.
“These are the most changes to the Manual for Courts-Martial that we’ve seen since a full committee studied it decades ago,” said Lt. Col. John Kiel Jr., the Policy Branch chief at the Army’s Criminal Law Division in the Office of the Judge Advocate General.
Key provisions of the Uniform Code of Military Justice, known throughout the military as the UCMJ, that were rewritten under the National Defense Authorization Act for fiscal year 2014, or NDAA14 — signed Dec. 26 by President Obama — are Articles 32, 60, 120 and 125.
NDAA14 now requires the services to have judge advocates serve as Article 32 investigating officers, or IOs. Previously, the Army was the only service where judge advocates routinely did not serve as Article 32 IOs.
Article 32 hearings are held to determine if there’s enough evidence to warrant a general court-martial — the most serious type of court-martial used for felony-level offenses like rape and murder.
Congress decided that the services needed to have trained lawyers — judge advocates — consider the evidence, since in their view, trained lawyers are often in the best position to make determinations to go forward with general courts-martial, he said.
The reason judge advocates didn’t always serve as 32 IOs in the Army was “largely because we try four times the number of cases of any of the other services,” meaning that it’s an issue of not having enough judge advocates for the high volume of cases.
The Army asked Congress to consider its resourcing issue, he said, so the legislators wrote an exception, stating that “where practicable, you will have a judge advocate conduct the Article 32 investigation,” he said.
Kiel explained what “where practicable” means, citing a number of circumstances where it could apply:
A lot of courts-martial were conducted over the years in Iraq and Afghanistan, where Soldiers were deployed. Some of those involved war crimes, he said. In these cases, the Army found it was sometimes best to have line officers be the Article 32 IOs because they could best put themselves in the shoes of the accused.
Those line officers “understood what it’s like to make decisions in the heat of battle better than a lawyer without those experiences. They added a level of judgment that sometimes judge advocates could not.”
Another example, he said, might be travel fraud.
“In the case of complex TDY (temporary duty) fraud for instance, you might want to have a finance officer as the IO,” he explained.
Besides subject-matter experts being in the best position to be Article 32 IOs, there might simply not be enough judge advocates in the area of the installation, he said. For example, there would likely be enough judge advocates in U.S. Army Forces Command to do 32 hearings, but if a number of hearings came up at once in U.S. Army Training and Doctrine Command installations, they might come up short.
That might jeopardize the right of an accused to a speedy trial if the clock runs out, he noted. And, if a judge advocate is flown in from another installation, travel costs would be incurred.
“Those are very real situations that could impact the ability to get it done expeditiously and cost effectively,” he explained.
Other attorneys on an installation cannot always be tapped for Article 32 IO work, he said.
On larger installations, “we have operational law attorneys who potentially could cover down on some of these areas, but we don’t have a lot of those.”
On other installations, administrative law attorneys might have conflicts of interest if they’ve previously rendered some kind of legal review on a case for example, he said.
“And, our administrative law attorneys are always busy reviewing various sorts of investigations and helping the command deal with such things as ethics and Family readiness issues,” he continued.
“Then we have our criminal law advocates, trial counsels and defense counsels,” he added. “They’re all conflicted out from being IOs, because they’re actually tasked with presenting evidence during the 32 as they’re acting as counsel to the government or to the accused.”
NDAA14 gives the services one year to phase in this change to Article 32, stipulating that where practicable, judge advocates conduct the investigations.
This one-year time period provides needed time for the staff judge advocates to figure out if they have enough judge advocates to fill the requirement to cover down on all the Article 32 hearings and determine which installations are struggling to meet the requirements, he said.
Another impact to courts-martial practice is the new requirement for a special victims counsel, Kiel said.
The special victims counsel’s task is to provide support and advice to the alleged victim, he said. For example, they must inform the victim of any upcoming hearings — pre-trial confinement, parole board, clemency and so on — and inform the victim that he or she can choose to attend any of those. As well, the victim will be notified in advance of trial dates and be informed of any delays.
Furthermore, he said, the special victims counsels may represent the alleged victims during trial, ensuring their rights are not violated, like under the Rape Shield Rule, for example.
The Rape Shield Rule or Military Rule of Evidence 412, prevents admission of evidence concerning sexual predisposition and behavior of an alleged victim of sexual assault.
Kiel provided an aside regarding the Rape Shield Law and how a high-visibility case a few months ago, involving football players at the U.S. Naval Academy, influenced changes to Article 32 by Congress.
In that case, the defense counsel had the victim on the stand for three days of questioning about the alleged victim’s motivations, medical history, apparel and so on during the Article 32 hearing, he related. The cross-examination was perceived by the public and Congress to be disgraceful and degrading, and potentially violating the federal Rape Shield Rule.
With passage of NDAA14, alleged rape and sexual assault victims are no longer subject to that kind of interrogation at the Article 32 hearing, he said.
Previous to NDAA14, alleged victims of sexual assault were ordered to show up at Article 32 hearings and frequently were asked to testify during those hearings as well.
“Congress thought that wasn’t fair, since civilian victims of sexual assault didn’t have to show up or testify,” he said. “Now, any victim of a crime who suffers pecuniary, emotional or physical harm, and is named in one of the charges as a victim, does not have to testify at the hearing.”
Like Article 32 changes, modifications to Article 60 are to be phased in over the course of 12 months. Article 60 involves pre-trial agreements and actions by the convening authority in modifying or setting aside findings of a case or reducing sentencing.
A convening authority could, in the past, do that, and some did, though rarely.
Changes to Article 60 were influenced last year by a case involving Air Force Lt. Col. James Wilkerson, a former inspector general convicted of aggravated sexual assault, Kiel said. The convening authority, Air Force Lt. Gen. Craig Franklin, overturned the findings of guilt.
“That got Congress stirred up,” Kiel said.
In NDAA14, legislators said the convening authority can no longer adjust any findings of guilt for felony offenses where the sentence is longer than six months or contains a discharge. They cannot change findings for any sex crime, irrespective of sentencing time.
One way a commander can still modify a sentence is “if the trial counsel comes forward and says ‘this particular accused was very helpful in securing evidence or cooperating with the government in prosecuting someone who was accused of committing an offense under the UCMJ.’ That is a trigger for the convening authority to be able to modify a sentence,” Kiel said.
The other way a convening authority can modify a sentence, even involving rape and sexual assault, is if a pre-trial agreement is in place, he said, meaning that the case could close, but the pre-trial agreement would still take effect.
Congress realized that Article 60 was still needed to continue the option for pre-trial agreements, he said. Had Article 60 been done away with altogether, that “would have likely meant all courts-martial would have gone to full contest and that would have bottlenecked the entire process.”
It also would have meant that all alleged victims of sexual assault would have likely had to testify if Article 60 were voided. “Sometimes victims supported the pre-trial agreement, supported the potential sentence and supported the fact that they didn’t have to testify — when it was in their best individual interest,” he said.
Other changes to courts-martial practice were made.
Prior to NDAA14, the convening authority could consider the military character of the accused, he said, in considering how to dispose of a case. Congress decided that should have no bearing on whether or not the accused has committed a sexual assault or other type of felony.
Also, previous to NDAA14, “sometimes the SJA would say ‘take the case to a general court-martial’ and the convening authority would disagree and say ‘I’m not going forward.’” Now, he said, “if the convening authority disagrees, the case has to go to the secretary of the service concerned and he would have to decide whether to go forward or not.”
Additionally, in the case of an alleged rape or sexual assault where “the SJA and the convening authority say don’t go forward because there’s a lack of evidence or for whatever reason, that case has to go up to the next highest general court-martial convening authority and they will do an independent review,” Kiel said.
So if the case occurred, say at the division level in the Army, and a decision were made at that level not to go forward, then the division would need to take the victim’s statements, its own statements for declining the case, and forward them and the entire investigative file to the next level up — in this case, the corps.
At the corps level, the SJA and the corps commander would then review the file, look at the evidence and make a determination whether or not to go forward, Kiel explained.
If it’s decided to move forward, to avoid unlawful command influence, the case would be referred at the corps level instead of sending it back down to the division, he added.
Articles 120 and 125
Under Articles 120 and 125 there are now mandatory minimum punishments. The minimum punishment for the Soldier convicted is dishonorable discharge for enlisted and dismissal for an officer, Kiel said.
Article 120 deals with rape and sexual assault upon adults or children and other sex crimes and Article 125 deals with forcible sodomy.
Now, the accused must appear before a general court-martial with no opportunity to be tried at a summary or special court-martial, Kiel said.
A summary court-martial is for relatively minor misconduct and a special court-martial is for an intermediate-level offense.
Furthermore, Congress highly encouraged the services not to dispose of sexual assault cases with adverse administrative action or an Article 15, which involves non-judicial punishment usually reserved for minor disciplinary offenses, Kiel said.
Rather Congress desires those cases to be tried at a general court-martial and has mandated that all sexual assault and rape cases be tried only by general courts-martial. And finally, prior to NDAA14, there was a five-year statute of limitations on rape and sexual assault on adults and children under Article 120 cases. Now, there’s no statute of limitations, he said.
Congress also repealed the offense of consensual sodomy under Article 125 in keeping with previous Supreme Court precedent, Kiel said.
Congress also barred anyone who has been convicted of rape, sexual assault, incest or forcible sodomy under state or federal law, from enlisting or being commissioned into military service.
Congress could make even more changes that address sexual assaults in the military as early as this month as they are back in session and discussing this.
And later this year, changes to the Manual for Courts-Martial should be signed by the president once it’s been reviewed by the services, the national security staff, Defense Department and other agencies, Kiel said. The updated manual would codify all the changes, although some are already in effect.
Also, besides changing portions of the UCMJ, NDAA14 addressed pay, bonuses, counter-terrorism initiatives abroad, and so on.
A full fiscal year 2014 military spending bill or Appropriations Act has yet to be passed by Congress, and although it appears that sequestration is on a respite, it still looms over the military for the coming years.