Both the House of Representatives and the Senate have adopted the conference report accompanying House Bill 4310, the National Defense Authorization Act for Fiscal Year 2013.

The legislation includes a subtitle called, “Improved Sexual Assault Prevention and Response in the Armed Forces.”  H.R. 4310, §§ 570-79.

The bill establishes panels to conduct two significant studies of military sexual assault cases.  It also requires the creation of “special victim capabilities” to investigate and prosecute child abuse, serious domestic violence, or sexual offense cases.  The legislation also adopts some new policies, including requiring “processing for administrative separation of any member of the Armed Forces . . . whose conviction for a covered offense is final and who is not punitively discharged.” § 572(a)(2).  Covered offenses include rape and sexual assault under Article 120, forcible sodomy under Article 125, and any attempt to commit one of those offenses.  This provision would reportedly require the Air Force and Army to adopt the existing Department of the Navy policy requiring such processing.

The bill requires each service to establish “special victim capabilities” for “investigating and prosecuting allegations of child abuse, serious domestic violence, or sexual offenses” and “providing support for the victims of such offenses.”  § 573(a).  Such special victim capabilities means “a distinct, recognizable group of appropriately skilled professionals” — including judge advocates, investigators, and victim witness assistance personnel — “who work collaboratively to” investigate and prosecute child abuse, serious domestic violence, and sex offense cases, as well as to support the victims of such offenses.  § 573(g).

The legislation requires SECDEF to “prescribe standards for the training, selection, and certification of personnel who will provide special victim capabilities for a military department.”  § 573(c).  The services are required to have initial special victim capabilities, including judge advocate support, in place within a year of the bill’s enactment. § 573(e)(2).

The bill also requires SECDEF to “establish a panel to conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses under” Article 120 “for the purpose of developing recommendations regarding how to improve the effectiveness of such systems.”  § 576(a).  The panel will compare military and civilian conviction rates for sexual assault offenses.  The panel will assess strengths and weaknesses of proposals to revise commanders’ role in military sexual assault cases.  The panel will also consider whether sentencing guidelines should be used in the military justice system.  The panel will also assess the training level of military defense counsel and prosecutors compared to their civilian counterparts.  The panel will consist of nine members, five appointed by SECDEF, and one each by the HASC and SASC chairmen and ranking members.

The bill also requires SECDEF to appoint a separate panel to conduct an independent review and study of judicial proceedings conducted under Article 120 as revised by the NDAA for FY 2012, which applies to offenses committed on or after 28 June 2012.  § 576(b).  This panel will have five members, including two from the panel discussed in the paragraph above.

The legislation also provides for additional training for prospective commanders on handling sexual assault allegations and fostering a command climate that deters sexual assaults.  § 574.  Training on similar topics is required for servicemembers upon entry onto active duty or duty with a reserve component.

The legislation also provides expanded requirements for command-conducted climate assessments and SECDEF-conducted workplace surveys.  The legislation also provides enhanced requirements for the content of unrestricted reports of sexual assault and retention of those reports as well as enhanced requirements for case synopses included within reports of dispostion of sexual assault cases.

The legislation also requires SECDEF to develop a comprehensive policy to prevent and respond to sexual harassment. § 579.

13 Responses to “NDAA for FY 2013’s sexual assault provisions”

  1. Brian Bouffard says:

    It’s like an unlawful command influence Lego set.

  2. Michael Korte says:

    I was once a member of an obscure organization that conducted an independent review and study of judicial proceedings….it was called the Defense Appellate Division.  Surprised they haven’t heard of them. Didn’t the Army also have a group of senior Officers who would independently give a look-see to all cases?  They were like an Army Court….that looked at Criminal Appeals…can’t put my finger on it their name, but they looked at every one.  I hope the new SECDEF panel is a “Blue Ribbon” panel.  Those are the finest of all panel-types. 

  3. Zachary Spilman says:

    All those folks review convictions for errors. Congress needs someone to review the acquittals.

  4. Gene Fidell says:

    See also sections 531-34. 

  5. Tami says:

    Oh, they’ll be reviewing acquittals too.  And how the defense counsel manage to get them, so then they can create more rules to further limit the ability to use that kind of evidence.  As far as admnistrative separation, interesting how Congress says kick out those whose conviction is final and who is not punitively discharged.  Wonder if they realized a conviction isn’t final until appellate review is complete?  It is possible for someone to get a sentence that triggers Article 66 review without a punitive discharge, and with the speed of some appellate courts, those cases will take years….

  6. k fischer says:

    Tami, 
    You’re right about limiting the Defense Counsel’s ability to use evidence; read section 576(d)(2)(F), Duties of Panels:
    (F) Review and assess those instances in which evidence of prior sexual conduct of the alleged victim was introduced by the defense in a court-martial and what impact that evidence had on the case.
    I imagine that most of those assessments will be directed towards that pesky MRE 608(c).
    With regards to administrative separation after a conviction with no punitive discharge, the convicted will still have a right to a board if the command wants an OTH or the Servicemember has 6 or more years in service. I believe that the message the commanders on the panels will get and will probably be discussed in deliberations is, “We better separate him here and now because if we don’t then we just created a whole heck of a lot of work for the Old Man who is required to gin up a separation board.”
     

  7. Dew_Process says:

    In case anyone has any doubt as to where this is heading (if we’re not already there), here’s some truthful satire:
    http://appellatesquawk.wordpress.com/2012/12/17/sexperts-in-the-courtroom-part-1/ 
    http://appellatesquawk.wordpress.com/2012/12/23/sexperts-in-court-part-2/

  8. soonergrunt says:

    So when do they just change Art 120 so that we simply incarcerate upon accusation?

  9. SFC V says:

    In the Army if a punitive discharge is not adjudged then an OTH may only be issued if approved by HQDA.   If the point is to get rid of these Soldiers as quick as possible I doubt you’ll see many OTH’s.     
    I can’t imagine too many instances of a chain of command not wanting to separate someone who was convicted of sexual assault.  Making commander’s process Soldiers for separation when convicted of sexual assault seems like a solution in search of a problem.
    How long before we require people who want to have sex to give notarized written consent to each other?           

  10. Mike "No Man" Navarre says:

    SG simplifies the law again. You should be on the Code Committee!!!

  11. Mike "No Man" Navarre says:

    SFC V–Having a third party witness sexual relations is a separate violation of the UCMJ.  Probably better to use 28 USC § 1746 – Unsworn declarations under penalty of perjury.

  12. John S says:

    Mike – indecent acts was eliminated from the 28 June 2012 UCMJ (See Appendix 27).  There is indecent viewing now under 120c but it would not seem to cover that circumstance based on the definition.

  13. SFC V says:

    Alcohol, young horny troops, and idiots who don’t have the common courtesy to call her back the next day.  This pretty much sums up more than a few “sexual assaults” in the military.
     
    I remember a case where after interviewing the victim the TC looked at me and said “V, if you and I had looked at her and said ‘hey you wanna, you know….?’ she probably would have been done it.”  The case was a too drunk too consent where this guy took her into a nasty barracks shower. 
     
    This was the same case in which one of his buddies told him not to mess with this chick.  When asked why he told him he said “Because she’s busted.”  I about fell out of my chair.