WASHINGTON — The fiscal year 2015 National Defense Authorization Act, or NDAA, signed into law last month, significantly changes the Uniform Code of Military Justice, known as UCMJ, 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 of policy branch, criminal law division, Office of the Judge Advocate General.
A big change involves Article 32 preliminary hearings, Kiel said. First, 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, Kiel 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
Over a year ago, the defense secretary directed that each of the services create a special victims’ counsel program, whereby each victim of sexual assault would be entitled to free legal counsel to represent them during all phases of the investigation and courts-martial proceedings.
“By all accounts, the services and Congress are pleased with the success achieved by these programs thus far,” Kiel said.
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, known as MRE, 412 or violating the psychotherapist-patient privilege under MRE 513. Writ of mandamus is an order from a superior court to a subordinate government court to do or refrain from doing something.
Regarding MRE 513, Kiel said the NDAA requires that the existing privilege between a psychotherapist and patient be expanded to include other licensed mental health professionals. It also requires that before any protected information may be released, a military judge conduct a closed hearing and apply a number of legal factors first before ordering the production or disclosure of any information.
In the FY14 NDAA, Congress required that commanders who have the discretion to dispose of offenses committed under the UCMJ can no longer consider the general military character of the accused in doing so. In this year’s NDAA, Congress went even further by prohibiting the consideration of general military character during the findings phase of courts-martial proceedings except for a limited number of enumerated offenses where that kind of character evidence would be relevant to the charged offense(s), Kiel said.
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 changes
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 using 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 defense secretary to study various aspects of sexual assault in the military and the military justice system in general, Kiel said.
“Those panels have and will continue to make recommendations in an effort to continue to improve our system. It is important to note that the military remains cognizant of that fact and continues to seek ways to improve itself,” he said.
“A number of the most significant reforms contained in the FY13, FY14 and FY15 NDAAs originated in the Department of Defense,” Kiel continued. “Congress codified them later. The military will continue to seek ways to improve how it handles the investigation and prosecution of sexual assault crimes and how it cares for the victims of such crimes. It will also remain vigilant in protecting the constitutional rights of the accused as it does so.”