The version of the 2011 DOD Authorization Act that the House passed on Friday includes a title called, “Improved Sexual Assault Prevention and Response in the Armed Forces.” It’s available here.
This 39-page title would make many changes, including amendments to the UCMJ. One of the portions that would affect military justice practice is section 1614, which would require the convening authority to consider the alleged victim’s opinion as to how a sexual assault allegation should be handled. That section provides: “Before making a decision regarding how to proceed under the Uniform Code of Military Justice in the case of an alleged sexual assault or other offense covered by section 920 of title 10, United States Code (article 120), the commanding officer shall offer to meet with the victim of the offense to determine the opinion of the victim regarding case disposition and provide that information to the convening authority.”
The bill would also require publicizing the results of sexual assault cases. Article 53 of the UCMJ would be amended by adding: “Dissemination of Results to Command in Certain Cases- In the case of an alleged sexual assault or other offense covered by section 920 of this title (article 120), the trial counsel shall notify the servicing staff judge advocate at the military installation, who shall notify the convening authority and commanders, as appropriate. In consultation with the servicing staff judge advocate, the commanding officer shall notify members of the command of the outcome of the case.”
Article 54 would be amended to require that a copy of the ROT be given to any alleged sexual assault victim who testified in a case: “In the case of a general or special court-martial involving a sexual assault or other offense covered by section 920 of this title (article 120), a copy of the prepared record of the proceedings of the court-martial shall be given to the victim of the offence if the victim testified during the proceedings. The record of the proceedings shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings.”
The bill would establish a privilege for communications between a victim and a Sexual Assault Victims Advocate co-extensive with the patient/psychiatrist privilege.
Perhaps most significantly, section 1643 of the bill would allow a servicemember or a dependent who is an alleged sexual assault victim to make a confidential report to:
(A) Military legal assistance counsel.
(B) Sexual Assault Response Coordinator.
(C) Sexual Assault Victim Advocate.
(D) Healthcare personnel.
The same section would also allow such servicemembers or dependents to decline to participate in an investigation.
And the section would create a statutory entitlement to legal assistance for such servicemembers and dependents:
(a) Availability of Legal Assistance and Victim Advocate Services-
(1) MEMBERS- A member of the armed forces or a dependent of a member of the armed forces who is the victim of a sexual assault is entitled to–
(A) legal assistance provided by a military legal assistance counsel certified as competent to provide such duties pursuant to section 827(b) of this title (article 27(b) of the Uniform Code of Military Justice); and
(B) assistance provided by a qualified Sexual Assault Victim Advocate.
Finally, the bill would require a report on the effectiveness of Article 120:
(a) Review Required- The Secretary of Defense shall conduct a review of the effectiveness of section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice), as amended by section 552 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163; 119 Stat. 3256). The Secretary shall use a panel of military justice experts to conduct the review.
(b) Submission of Results- Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit the results of the review to the congressional defense committees.