For those of us involved in military justice, these are
exciting times! Among lots of other military justice/sexual assault debate, the battle over the future of Article 32 continues during the amendment bonanza that is the National Defense Authorization Act of FY 2014. On Monday, Sen. Barbara Boxer introduced SA 2081, an amendment to the NDAA that would substantially change Article 32, UCMJ. The amendment is similar to her bill, which we covered here and is currently referred to committee, but with some important changes.
First, the amendment backtracks some from the requirement that the IO be of equal or greater rank as counsel and must be a judge advocate. Under the amendment, the IO may be on officer other than a judge advocate “in exceptional circumstances.” Additionally, the amendment makes the equal or higher grade a requirement “wherever supportable.” For those who have accepted that Article 32 is probably not going to come out of the legislative session unscathed, this is a common sense and welcome adjustment.
Second, and more concerning, the amendment makes an important change in this new concept of witness unavailability. Sen. Boxer’s bill stated that:
A victim of the offense may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.
However, the language of the amendment says:
A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.
This is a big deal. Under the language of the bill, it’s “a victim of the offense.” Under the language of the amendment, it’s simply “a victim.” That means any victim, of anything. And if you don’t believe me that it’s an expansive definition, just look at the most recent language that the Marine Corps is using to define a victim for the purposes of providing victim’s counsel:
A VICTIM IS A PERSON WHO HAS SUFFERED DIRECT PHYSICAL, EMOTIONAL, OR PECUNIARY HARM AS A RESULT OF A CRIME IN VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE.
MARADMIN 583/13 . I’m not sure how military would be in a position to construe the amendment language less expansively. So your buddy stole your Playstation two years ago? Guess what, should it come up you never have to testify at a “preliminary hearing” if you don’t want to. For life. That’s the plain reading of the statute right? There are no meaningful restrictions on it.
I understand that the Article 32 is a strange beast to understand for those outside the military justice system, even those who have been civilian prosecutors. But I would think it would also be difficult for those same people to understand, as one commenter has noted on several of these posts, that the accused can be sent away to jail for the rest of his natural born life by four out of five people on a general court-martial panel. Yet no one seems at all concerned about that. So as we erode one protection for the accused, we are doing nothing to balance that anywhere else. Protecting victims of crime is good and the right thing to do. But that must always be balanced against the rights of those who are innocent until proven guilty and who stand to lose the most from the process. The text of SA 2081 is available here.