While it looks like we are moving toward an interesting showdown over Sen. Gillibrand’s Military Justice Improvement Act, we should not lose sight of the fact that her main opponent, Sen. McCaskill has a competing bill floating out there. S. 1917 provides some additional tweaks to the military justice reforms that were passed in the FY14 NDAA. There are several interesting proposals not the least of which is this one:
(a) Additional duty of Special Victims’ Counsel
In addition to any duties authorized by section 1044e of title 10, United States Code (as added by section 1716 of the National Defense Authorization Act for Fiscal Year 2014), a Special Victims’ Counsel designated under subsection (a) of such section 1044e shall provide advice to victims of sexual assault on the advantages and disadvantages of prosecution of the offense concerned by court-martial or by a civilian court with jurisdiction over the offense before such victims express their preference as to the prosecution of the offense under subsection (b).
(b) Consultation with victims regarding preference in prosecution of certain sexual offenses
(1) In general
The Secretaries of the military departments shall each establish a process to ensure consultation with the victim of a covered sexual offense that occurs in the United States with respect to the victim’s preference as to whether the offense should be prosecuted by court-martial or by a civilian court with jurisdiction over the offense.
(2) Weight afforded preference
The preference expressed by a victim under paragraph (1) with respect to the prosecution of an offense, while not binding, should be afforded great weight in the determination whether to prosecute the offense by court-martial or by a civilian court.
(3) Notice to victim of lack of civilian criminal prosecution after preference for such prosecution
In the event a victim expresses a preference under paragraph (1) in favor of prosecution of an offence by civilian court and the civilian authorities determine to decline prosecution, or defer to prosecution by court-martial, the victim shall be promptly notified of that determination.
This is interesting for several reasons. First, it made me go back and check the text of the new Article 6b, UCMJ. In doing so, I found an omission I had overlooked when compared with 18 U.S.C. 3771, the Crime Victim’s Rights Act (CVRA). As Zach observed, the new Article 6b seems based in large part on the CVRA. While the CVRA and Article 6b afford crime victims the same rights, the CVRA provides that:
Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.
That phrase, or its military approximate, appears nowhere in Article 6b. Judging from the proposal in S.1917, it seems that the intent of some in the Senate is to subject prosecutorial discretion in the military to the wishes of the victim, even if his or her wishes are not binding.
This brings me to my second point. While it seems clear “who” is a victim under the text of Article 6b and 18 U.S.C. 3771, it’s less clear “when” a person becomes a victim for the purpose of the statutes. The DOJ’s Office of Legal Counsel addressed this issue in an opinion, and determined that the rights under the CVRA attached only after a complaint, information, or indictment was filed.
Nevertheless, the definition’s requirement that a crime victim be harmed as a result of the commission of a Federal “offense” naturally suggests that a person’s status as a “crime victim” can only be determined after there has been a formal decision to charge a defendant with a particular Federal offense. Under this reading, the earliest that a “crime victim” under the Act could be identified would be upon the filing of a criminal complaint—that is, at the earliest point at which there is a sworn written statement of probable cause to believe that a particular defendant committed an identified Federal offense, see Fed. R. Crim. P. 4, and hence the first point at which it is possible with any certainty to identify a “crime victim” directly and proximately harmed by the commission of that offense.
In other words, if there is no criminal proceeding ongoing (i.e. something more than an investigation) then there is no “victim” of a crime. In the military context, I think we would set the initiation of criminal proceedings at the preferral of charges. Prior to that, there is no criminal case against the accused. Against this backdrop, the proposal in S. 1917 seems quite strange. How could a “victim” express his or her desires concerning the venue in which a case is prosecuted if there is no existing prosecution giving him or her status as a “victim?” Good luck wrapping your head around that one.
As a side note, this interpretation of when a “victim” becomes a victim has implications for his or her ability to consult with the prosecutor. From the OLC opinion:
Similarly, the wording of the CVRA’s “reasonable right to confer with the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5), suggests that the right is intended to apply only once the Government has initiated criminal proceedings. The phrase “in the case” implies the pendency of a judicial proceeding.