Post edited to reflect the actual text of the memo, instead of the DoD press release.

In a memo dated August 14, 2013, the Secretary of Defense announced seven new initiatives dealing with sexual assault cases “to improve victim support, strengthen pretrial investigations, enhance oversight, and make prevention and response efforts more consistent across the military services”:

Improving Victim Legal Support: Secretaries of the Military Departments shall establish a special victim’s advocacy program best suited for that Service that provides legal advice and representation to the victim throughout the justice process. Each Service will identify and periodically share best practices, and will establish an initial operating capability not later than November 1, 20 13, and a fully established program by January 1,20 14.

Expanding Victim Rights: General Counsel shall develop draft language for an Executive Order to amend the Manual for Courts Martial to provide victims of crime the opportunity to provide input to the post-trial action phase of courts-martial. Deliver your proposal to me not later than October 15,2013.

Enhancing Protections: Secretaries of the Military Departments shall develop and implement policy allowing the administrative reassiglU11ent or transfer of a member who is accused of committing a sexual assault or related offense, balancing interests of the victim and accused. Implement this provision not later than January 1, 2014.

Standardizing Protections: Under Secretary of Defense for Personnel and Readiness shall ensure current policies prohibiting inappropriate relations between trainers and trainees and recruiters and recruits are consistent across the Services. Report your findings to me not later than November 1, 2013

Elevating Oversight: Under Secretary of Defense for Personnel and Readiness shall develop policy, standardized across all the Services, that requires status reports of unrestricted sexual assault allegations and actions taken to the first general/flag officer within the chain of command, without delaying reporting to the relevant military criminal investigation organization. Implement this policy not later than November 1, 2013.

Enhancing Pretrial Investigations: Secretaries of the Military Departments shall mandate that judge advocates serve as investigating officers for all Article 32 hearings on sexual assault offense charges. Implement this policy not later than December 1, 2013.

Ensuring Investigative Quality: I am requesting that the Department of Defense Inspector General plan to evaluate the adequacy of closed sexual assault investigations on a recurring basis. Respond to this request within 30 days.

None of these seem particularly earth-shattering except the first, which will cause each of the services to establish a program like the Air Force special victims counsel program that brought us this term’s decision in LRM v. Kastenberg, No. 13-5006/AF, (opinion) (CAAFlog case page).

14 Responses to “New DoD wide sexual assault response initiatives”

  1. Pete says:

    Note that the last bullet was an apparent mistake in the press release.  The SecDef memo directs DoD GC to draft changes to the MCM to allow victim input in the post-trial process vice sentencing.

  2. Brian Bouffard says:

    Really, really sick and tired of seeing the word “victim” when it’s not immediately preceded by the word “alleged,” in official memoranda and directives before there’s been a conviction.  Our system is submerged and marinating in bias.  All practitioners should be voir diring on this issue (as well as the members’ personal take on the authority of a military judge to order them to disregard comments from the President, SD, or other senior leadership).

  3. stewie says:

    You think there’s a problem with post-trial delay now? Imagine when justice shops have to wait on victims to submit their material. Accused/DC are usually pretty good about meeting deadlines (although not always) but getting victims to comply is going to be like herding felines.
    Between victim’s counsel, and one might assume O6 Sexual Assault “deciders” in Sen Gillibrand’s bill, it seems like either the JAG Corps is going to become stretched to the breaking point, or we need to add a lot more officers.

  4. Gene Fidell says:

    Why not change the MCM to require that all Art. 32 officers be judge advocates, not just those investigating sexual assault charges?

  5. dude says:

    Interesting that bullet points 3, 5, 6, and 7 all direct new measures in sexual assault cases specifically.  Point 4 directs a new measure regarding “inappropriate relations between trainers and trainees and recruiters and recruits.”   In contrast, points 1 and 2 do not have any such limiting language.  The absence  of such language is striking, and invites a person to read those provisions as granting SVC and clemency input rights to all victims in the MJ process – not just sexual assault victims.  

  6. SFC V says:

    What is the purpose of having JA’s serve as article 32 officers in all sexual assaults?  Since a JA is more likely to exercise independent judgment and find a lack of probable cause.  I wonder if this will result in a few more cases getting kicked at the pre-trial stage? 

  7. SomeDC says:

    Interesting look at concurrent jurisdiction at last para on page 1

  8. Ed says:

    SomeDC says:
    Because no civilian prosecutor with a brain would prosecute some of the cases prosecuted by the military.

  9. mike says:

    Having JAs as the 32 Officers will result in even more recommendations of not going forward…and the convening authority going forward anyway (b/c of the politics – have to look like he/she is tough on sexual assault)
    I say make the 32 binding – if they don’t have enough, come back and try again – similar to Grand Jury

  10. Phil Cave says:

    The idea that 32’s are flawed (in the Army) because non lawyers are IOs is flawed and I don’t think sits with reality.  I think one or two cases may have gotten political attention, and as an explanation for a llawed investigation someone needs to be blamed and so it is the IO.  Those few cases now become the meme.  
    I think the reality is that it is more lawyer IO 32s that recommend against charges or referral than Army 32’s.
    Has anyone compared the reality (or closer to it) by comparing Army v. AF, DON, CG?  I’d be interested to see if there is in fact an identifiable problem.  Of course I’m not sure those stats are readily available.  We could guess that almost all Army 32s are non lawyer and the other Services lawyer.  But getting to the underlying recommendations is the problem unless someone has started keeping that kind of metric.

  11. Bridget Wilson says:

    What Gene said. It seems wise to have lawyer IO for all cases not just sexual assault cases.

  12. Marc says:

    When does the representation to the alleged victim end?  Post-trial, resentencing hearings after appeal, Dubey hearings, etc.?  This will be very interesting to monitor as we RAPIDLY implement it. 

  13. AFJAGCAPT says:

    The AF approach is that representation will normally be terminated at action.

  14. dude says:

    When should (vs. does) the representation to the alleged victim begin?  When does he or she have any legally cognizable rights that a lawyer could legitimately help in defending?  When the defense gives notice of intent to introduce MRE 412 evidence?  When a discovery request asks for mental health records, or SAPR records?  If one of those issues has not been raised, then what exactly is an SVC doing other than coaching the government’s key witness regarding how to appear more credible (i.e., tampering with the witness)?