This is part two of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

Of the 15 NDAA provisions identified in the first part of this series, seven of them affect the earliest stages of a court-martial prosecution. They are:

  • § 1701, creating “Article 6b. Rights of the victim of an offense under this chapter.”
  • § 1716, codifying the special victims counsel program in 10 U.S.C. § 1044e, “Special Victims’ Counsel for victims of sex-related offenses.”
  • § 1703, amending Article 43 to eliminate the 5-year statute of limitations on sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This section applies only to offenses committed on or after December 26, 2013.
  • § 1705(a), amending Article 56 to create a mandatory minimum of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. This takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1705(b), amending Article 18 to confer jurisdiction over the 1705(a) offenses to only general courts-martial. This also takes effect and applies only to offenses committed on and after June 24, 2014 (180 days from enactment).
  • § 1708, requiring the President to amend the non-binding discussion to R.C.M. 306.
  • § 1707, repealing the offense of consensual sodomy.

Discussion of each of these provisions follows.

The new Article 6b establishes “Rights of the victim of an offense under this chapter.” A victim is defined as “a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under [the UCMJ].” The rights afforded are:

(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A preliminary hearing under section 832 of this title (article 32) relating to the offense.
(C) A court-martial relating to the offense.
(D) A public proceeding of the service clemency and parole board relating to the offense.
(E) The release or escape of the accused, unless such notice may endanger the safety of any person.
(3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.
(4) The right to be reasonably heard at any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A sentencing hearing relating to the offense.
(C) A public proceeding of the service clemency and parole board relating to the offense.
(5) The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).
(6) The right to receive restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.

These rights parallel the eight rights in the Crime Victims’ Rights Act (18 U.S.C. § 3771), which has been considered by multiple federal courts (check out your preferred annotated version of the U.S. Code for cases and analysis).

In a related provision outside the Code, the Special Victims Counsel program is codified in a new 10 U.S.C. § 1044e. The new statute authorizes a broad range of legal services “for the purpose of providing legal assistance to an individual eligible for military legal assistance under section 1044 of this title who is the victim of an alleged sex-related offense, regardless of whether the report of that offense is restricted or unrestricted.” Interestingly, the new statute is redundant with 10 U.S.C. § 1565b. Additionally, I see nothing in either 1565b or 1044e that authorizes the provision of such services to civilians who are not military dependents.

Section 1703 of the NDAA amends Article 43 to eliminate the 5-year statute of limitations on sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This section is merely prospective, applying only to offenses committed on or after December 26, 2013 (the date of enactment). Put differently, it won’t affect any case for another 5 years.

Section 1705 creates the mandatory minimum sentence of dismissal or dishonorable discharge for the offenses of rape (Art. 120(a)),  sexual assault (Art. 120(b)), rape of a child (Art. 120b(a)), sexual assault of a child (Art. 120b(b)), forcible sodomy (Art. 125), and attempts to commit these offenses. It also amends Article 18 to confer jurisdiction over these offenses to only general courts-martial. These sections take effect and apply only to offenses committed on and after June 24, 2014 (180 days from enactment).

These mandatory minimums are a big deal at the preferral stage. Other sections require reporting when a charged sex offense isn’t referred and limit the convening authority’s ability to reduce the sentence (even when there’s a pretrial agreement) in the case of a mandatory minimum offense. I will discuss these new rules in parts four and five of this series, but the message to prosecutors is to charge carefully least they unnecessarily tie a commander’s hands.

Section 1708 requires the President to change the discussion to R.C.M. 306. Not the Rule… the discussion. The Congressional mandate states, in its entirety:

Not later than 180 days after the date of the enactment of this Act, the discussion pertaining to Rule 306 of the Manual for Courts-Martial (relating to policy on initial disposition of offenses) shall be amended to strike the character and military service of the accused from the matters a commander should consider in deciding how to dispose of an offense.

The enforceability of this provision is dubious, considering that the Manual for Courts-Martial is an executive order and the commentary is self-acknowledged as non-binding. The very first discussion section in the MCM states:

The Department of Defense, in conjunction with the Department of Homeland Security, has published supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, and the Punitive Articles), an Analysis, and various appendices. These supplementary materials do not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules. The supplementary materials do not create rights or responsibilities that are binding on any person, party, or other entity (including any authority of the Government of the United States whether or not included in the definition of “agency” in 5 U.S.C. §551(1)).

Discussion, Paragraph 4, Part I (Preamble), Manual for Courts-Martial (2013) (citation omitted) (emphases added) (link to excerpt). Congress might as well order a revision to the commentary on this blog.

Finally, Congress repealed the prohibition against consensual sodomy in Article 125. With changes in the law permitting homosexuals to serve openly in the armed forces, and decisions like United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), making every consensual sodomy case a difficult balancing act between individual liberties and special factors that remove the sexual activity from the liberty interest reinforced by Lawrence v. Texas, 539 U.S. 558 (2003), this change is long overdue. Forcible sodomy is still prohibited by Article 125 (and Article 120, of course), and a prohibition against bestiality is added to the Article.

One Response to “2013 Changes to the UCMJ – Part 2: Preferral-stage changes”

  1. Christian Deichert says:

    Well, thank God we’ve finally got a codified prohibition against bestiality. I just hope that US v. Sanchez is cited somewhere in the discussion section; that’s an important part of JAG Corps history that needs to be preserved. (Especially since Darryl Phillips took his chicken t-shirt and accompanying rubber prop with him when he retuired from AFJAGS.)