As previously posted by “No Man,” Sen. Boxer introduced a bill to amend 10 U.S.C. 832 aka Article 32, UCMJ. The text of the bill is now available here. One thing the bill does have going for it is that it abandons any pretense of “reforming” the Article 32 investigation in its current form, and calls it what it is, or what it is proposed to be – a preliminary hearing.

The bill is similar in content to the one introduced in the house, covered previously here. The complaining witness can refuse to testify, the hearing is limited to a probable cause determination and recommended disposition, etc. However, there are a few unique provisions, including this one:

A judge advocate may conduct a preliminary hearing if the judge advocate has a grade equal to or higher than the grade of the trial counsel and, if the accused is represented by military counsel, the defense counsel who will represent the accused at the preliminary hearing.

I could see this posing a logistical problem, particularly at small bases and in light of the regionalization of some defense services. Also, and maybe I’m reading too much into this, but this provision seems to be related to Congress’ strange but persistent belief that rank structure and military hierarchy are somehow uniquely to blame for too few, in their opinion, sexual assault prosecutions.

7 Responses to “MILJUS Legislation Watch: S.1644 and Article 32 Reform”

  1. John O'Connor says:

    Even on large bases, the requirement that the IO be of equal or higher rank than the TC and DC could pose logistical issues.  When I was at Camp Pendleton many years ago, the Senior DC was a Lieutenant Colonel and when he had a case there wouldn’t be too many JAGs of equal or senior rank, and many of those would be disqualified (such as the head of the LSSS, the convening authority’s SJA, etc.).  

  2. Contract Lawyer says:

    What if RDC was on every 32?

  3. Former DC says:

    Apologies for not being more specific, but I am not in a place right now where I can look this up. But my memory recalls a case where the IO was junior to the other parties – an Army JAG, if memory serves – and the CMA looked on it with disdain, calling it highly irregular and a breach of military protocol. I will see if I can find it. 

  4. rob klant says:

    And — absent a claim of self-incrimination or similar privilege — on precisely what basis may a military subordinate otherwise refuse to obey the lawful order of a superior, e.g. to testify at an Article 32 heariing?M
    Might her disobedience be used to undermine any claim she makes against a service member exhibiting a more scrupulous adherence to his military duties?

  5. St. Michael says:

    Not sure I understand Rob’s question.  How can an order for the alleged victim to testify be lawful if there is a statute in place that provides an avenue for him or her to decline to testify?
    Regardless, I do not see the point of the preliminary hearing if only the alleged victim does not have to testify.  If Congress wants a preliminary hearing, it should amend Art 32 so as to not require any testimony.  No testimony is needed for the purposes as stated in the proposed statute: jurisdiction, form of the charges, probable cause determination, disposition recommendation.  Whether the info in the victim’s, subject’s, and other witnesses’ statements is true or not is for the court-martial to decide.
    Better yet, do away with Art 32 completely. 

  6. Bill Cassara says:

    As I have maintained on other threads, we can’t do this in a vacuum. You want to do away with the 32, or turn it into a PC hearing?  Fine.  Give me 12 jurors, randomly selected, and require a unanimous verdict.  But the reason why 32s are so liberal for the defense is because the rest of the system is so favorable to the government.  When 4 of 6 people, all very senior to the accused, can convict him and put him away for life, he should be allowed more than ample opportunity to review their evidence and question their witnesses.   So any reform should come as a package deal.

  7. DB Cooper says:

    Starting with the amendments to Article 120 several years back, we’ve seen many of these “reforms” have unintended consequences that actually harm the government’s ability to obtain convictions.  For example, if the victim refuses to testify, it admittedly spares the victim from enduring some potentially harsh cross examination.  But the defense will still be able to question investigators, acquaintances, superiors, etc., to whom the victim made statements about the alleged sexual assault, and exploit any contradictions or inconsistencies in those various statements.  Meanwhile, the victim won’t be able to explain contradictions or inconsistencies through their own testimony at the 32.  And if the defense requests that the victim appear at the 32 to testify, and the victim refuses, can the investigating officer draw an adverse inference from that refusal?  Can the panel? 
    On a broader topic, are these proposed reforms really the best way to come at this?  Shouldn’t prevention be the goal?  Stated differently, would a sexual assault victim prefer (1) that the assailant be the recipient of swift, stern justice or (2) to not be a victim in the first place?  If, for example, we just simply banned Class 6 stores from every single military base in the world and had zero tolerance for underage alcohol consumption, wouldn’t the numbers of sexual assaults go down significantly?