This is part six 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.

After working through the military justice provisions in the NDAA and writing this series of posts, it’s clear that the first practice note is that it’s important for you to read the new provisions for yourself. It’s worth at least skimming all 38 military justice provisions from the NDAA in this bookmarked PDF. I also recommend using our Word version of the UCMJ, and reading in full:

  • Article 6b (“Rights of the victim…”). Also check out the Crime Victims’ Rights Act (18 U.S.C. § 3771).
  • The future Article 32 (discussed in this post).
  • The new Article 46 (discussed in this post).
  • The future Article 60(c) and the new Article 60(d) already in effect (discussed in this post).
  • The future Article 56 (sex offense mandatory minimums) and Article 18 (jurisdiction for the mandatory minimums).

I think that there are more potential pitfalls for prosecutors than for defense counsel in the new rules. For starters, prosecutors need to be more cautious when making charging decisions. Charging the most serious sex offenses will implicate the mandatory minimums and the restrictions on the convening authority’s ability to reduce a sentence, even when there is a PTA. They will also invoke the requirement for review if not referred to trial. A victim named in a specification will have the option to refuse to participate in the Article 32 preliminary hearing, and the VWAP process will likely get more attention now that victims shall have an opportunity to submit post-trial matters. The trial counsel must also affirmatively act to invoke the victim-interview provisions of Article 46(b).

But there’s plenty of danger for defense counsel, who will need to get more creative in presenting a case under the future Article 32. And the mandatory minimums are hard to avoid, even when the accused pleads guilty, unless the plea is to a lesser offense that doesn’t have a minimum. There’s also the issue of the recommendation from a trial counsel for sentence reduction in recognition of substantial assistance. Such a recommendation isn’t required in a case with a pretrial agreement and no mandatory minimum sentence, but it’s going to be a distinguishing feature of a deserving accused. Wherever the facts support such a recommendation, defense counsel should try to get it, perhaps as a term of the PTA. And the defense has to tread carefully around the victim-interview provisions of Article 46 (for now, at least).

Both sides will get much more familiar with the deposition rules once victims can refuse to participate in an Article 32. And both sides will have to watch out for pitfalls from the provisions that don’t take effect until the future and apply only to offenses committed on or after their effective date (Articles 32 and 60(c), and the mandatory minimums). The normal practice of combining all known offenses into a single court-martial will create situations where two separate versions of the Code to apply to a single case. For example, offenses committed in November, 2014, and in January, 2015, and destined for the same general court-martial, will require two separate Article 32 proceedings (one an “investigation” of the November offenses, and the other a “preliminary hearing” on the January offenses). Similar difficulties will arise late this summer, when convening authorities start acting on cases that both pre- and post-date the new Article 60(c).

Both sides will likely fight Special Victims Counsel, who may yet try to appear on behalf of an alleged victim who is a civilian not authorized to receive legal assistance, in violation of the new 10 U.S.C. § 1044e.

And the post-trial process, already the source of much confusion and delay, will only become more confusing and time-consuming now that a victim has the right to submit post-trial matters.

Speaking of victims, I count five separate definitions of “victim” in the new provisions:

The new Article 6b defines a victim as:

(b) Victim of an Offense Under This Chapter Defined- In this section, the term ‘victim of an offense under this chapter’ means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

The future Article 32 defines a victim as:

(h) Victim Defined- In this section, the term `victim’ means a person who–
(1) is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and
(2) is named in one of the specifications.

The new Article 46(b) defines a victim as any:

. . . alleged victim of an alleged sex-related offense who trial counsel intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter . . .

The new Article 60(d) defines a victim as:

(5) In this section, the term ‘victim’ means a person who has suffered a direct physical, emotional, or pecuniary loss as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section.

And the new 10 U.S.C. § 1044e (the SVC statute) defines a victim as:

…An individual eligible for military legal assistance under section 1044 of this title who is the victim of an alleged sex-related offense [defined as attempted or completed violations of Articles 120, 120a, 120b, 120c, or 125]

Besides the absurdity of so many various and vague definitions for “a victim,” I’m struck by the difference in the definitions in the victims’ rights statute (Article 6b) and the post-trial matters statute (Article 60(d)) (as discussed in part 5 of this series). Both encompass “direct physical, emotional, or pecuniary” effect, but Article 6b requires only “harm” while Article 60(d) requires actual “loss.” This difference isn’t just semantic. An appellant could win a new post-trial action based on denial of clemency after the convening authority considered matters submitted by a victim who suffered only “harm,” and not actual “loss.”

This tangent into the definition of victim isn’t without a purpose. Military law is a large and growing body of jurisprudence. While the reforms in the NDAA made some dramatic changes in the military justice system, they are neither impervious to judicial interpretation nor do they make the system unrecognizable. Commanders are still the dominating force, the roles and responsibilities of counsel, military judges, and members are largely unchanged, and we’ll have plenty to write about.

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